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C H A P T E R
TA X R E S E A R C H
LEARNING OBJECTIVES
After studying this chapter, you should be able to
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Describe the steps in the tax research process Explain how the facts influence the tax consequences Identify the sources of tax law and understand the authoritative value of each Consult tax services to research an issue Grasp the basics of Internet-based tax research Use a citator to assess tax authorities Understand professional guidelines that CPAs in tax practice should follow Prepare work papers and communicate to clients
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Prentice Hall's Federal Taxation 2012 Corporations, Partnerships, Estates & Trusts, Twenty Fifth Edition, by Kenneth E. Anderson, Thomas R. Pope, and John L. Kramer. Published by Prentice Hall. Copyright 2012 by Pearson Education, Inc.
1-2 Corporations Chapter 1
CHAPTER OUTLINE
Overview of Tax Research...1-2 Steps in the Tax Research Process...1-3 Importance of the Facts to the Tax Consequences...1-5 The Sources of Tax Law...1-7 Tax Services...1-25 The Internet as a Research Tool...1-26 Citators...1-30 Professional Guidelines for Tax Services...1-32 Sample Work Papers and Client Letter...1-36
This chapter introduces the reader to the tax research process. Its major focus is the sources of the tax law (i.e., the Internal Revenue Code and other tax authorities) and the relative weight given to each source. The chapter describes the steps in the tax research process and places particular emphasis on the importance of the facts to the tax consequences. It also describes the features of frequently used tax services and computer-based tax research resources. Finally, it explains how to use a citator. The end product of the tax research processthe communication of results to the clientalso is discussed. This text uses a hypothetical set of facts to provide a comprehensive illustration of the process. Sample work papers demonstrating how to document the results of research are included in Appendix A. The text also discusses two types of professional guidelines for CPAs in tax practice: the American Institute of Certified Public Accountants (AICPAs) Statements on Standards for Tax Services (reproduced in Appendix E) and Treasury Department Circular 230.
OV E RV I E W
O F TA X R E S E A R C H
ADDITIONAL COMMENT
Closed-fact situations afford the tax advisor the least amount of flexibility. Because the facts are already established, the tax advisor must develop the best solution possible within certain predetermined constraints.
Tax research is the process of solving tax-related problems by applying tax law to specific sets of facts. Sometimes it involves researching several issues and often is conducted to formulate tax policy. For example, policy-oriented research would determine how far the level of charitable contributions might decline if such contributions were no longer deductible. Economists usually conduct this type of tax research to assess the effects of government policy. Tax research also is conducted to determine the tax consequences of transactions to specific taxpayers. For example, client-oriented research would determine whether Smith Corporation could deduct a particular expenditure as a trade or business expense. Accounting and law firms generally engage in this type of research on behalf of their clients. This chapter deals only with client-oriented tax research, which occurs in two contexts: 1. Closed-fact or tax compliance situations: The client contacts the tax advisor after completing a transaction or while preparing a tax return. In such situations, the tax consequences are fairly straightforward because the facts cannot be modified to obtain different results. Consequently, tax saving opportunities may be lost.
Tom informs Carol, his tax advisor, that on November 4 of the current year, he sold land held as an investment for $500,000 cash. His basis in the land was $50,000. On November 9, Tom reinvested the sales proceeds in another plot of investment property costing $500,000. This is a closed fact situation. Tom wants to know the amount and the character of the gain (if any) he must recognize. Because Tom solicits the tax advisors advice after the sale and reinvestment, the opportunity for tax planning is limited. For example, the possibility of deferring taxes by using a like-kind exchange or an installment sale is lost.
EXAMPLE C:1-1
ADDITIONAL COMMENT
Open-fact or tax-planning situations give a tax advisor flexibility to structure transactions to accomplish the clients objectives. In this type of situation, a creative tax advisor can save taxpayers dollars through effective tax planning.
2. Open-fact or tax-planning situations: Before structuring or concluding a transaction, the client contacts the tax advisor to discuss tax planning opportunities. Tax-planning situations generally are more difficult and challenging because the tax advisor must consider the clients tax and nontax objectives. Most clients will not engage in a transaction if it is inconsistent with their nontax objectives, even though it produces tax savings.
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EXAMPLE C:1-2
Diane is a widow with three children and five grandchildren and at present owns property valued at $10 million. She seeks advice from Carol, her tax advisor, about how to minimize her estate taxes and convey the greatest value of property to her descendants. This is an openfact situation. Carol could advise Diane to leave all but a few hundred thousand dollars of her property to a charitable organization so that her estate would owe no estate taxes. Although this recommendation would eliminate Dianes estate taxes, Diane is likely to reject it because she wants her children or grandchildren to be her primary beneficiaries. Thus, reducing estate
Tax Research Corporations 1-3 taxes to zero is inconsistent with her objective of allowing her descendants to receive as much after-tax wealth as possible.
TAX STRATEGY TIP
Taxpayers should make investment decisions based on after-tax rates of return or after-tax cash flows.
ADDITIONAL COMMENT
It is important to consider nontax as well as tax objectives. In many situations, the nontax considerations outweigh the tax considerations. Thus, the plan eventually adopted by a taxpayer may not always be the best when viewed strictly from a tax perspective.
When conducting research in a tax-planning context, the tax professional should keep a number of points in mind. First, the objective is not to minimize taxes per se but rather to maximize a taxpayers after-tax return. For example, if the federal income tax rate is a constant 30%, an investor should not buy a tax-exempt bond yielding 5% when he or she could buy a corporate bond of equal risk that yields 9% before tax and 6.3% after tax. This is the case even though his or her explicit taxes (actual tax liability) would be minimized by investing in the tax-exempt bond.1 Second, taxpayers typically do not engage in unilateral or self-dealing transactions; thus, the tax ramifications for all parties to the transaction should be considered. For example, in the executive compensation context, employees may prefer to receive incentive stock options (because they will not recognize income until they sell the stock), but the employer may prefer to grant a different type of option (because the employer cannot deduct the value of incentive stock options upon issuance). Thus, the employer might grant a different number of options if it uses one type of stock option versus another type as compensation. Third, taxes are but one cost of doing business. In deciding where to locate a manufacturing plant, for example, factors more important to some businesses than the amount of state and local taxes paid might be the proximity to raw materials, good transportation systems, the cost of labor, the quantity of available skilled labor, and the quality of life in the area. Fourth, the time for tax planning is not restricted to the beginning date of an investment, contract, or other arrangement. Instead, the time extends throughout the duration of the activity. As tax rules change or as business and economic environments change, the tax advisor must reevaluate whether the taxpayer should hold onto an investment and must consider the transaction costs of any alternatives. One final note: the tax advisor should always bear in mind the financial accounting implications of proposed transactions. An answer that may be desirable from a tax perspective may not always be desirable from a financial accounting perspective. Though interrelated, the two fields of accounting have different orientations and different objectives. Tax accounting is oriented primarily to the Internal Revenue Service (IRS). Its objectives include calculating, reporting, and predicting ones tax liability according to legal principles. Financial accounting is oriented primarily to shareholders, creditors, managers, and employees. Its objectives include determining, reporting, and predicting a businesss financial position and operating results according to Generally Accepted Accounting Principles. Because tax and financial accounting objectives may differ, planning conflicts could arise. For example, management might be reluctant to engage in tax reduction strategies that also reduce book income and reported earnings per share. Success in any tax practice, especially at the managerial level, requires consideration of both sets of objectives and orientations.
T E P S I N T H E TA X RESEARCH PROCESS
OBJECTIVE
S
1. 2. 3. 4. 5. 6.
In both open- and closed-fact situations, the tax research process involves six basic steps: Determine the facts. Identify the issues (questions). Locate the applicable authorities. Evaluate the authorities and choose those to follow where the authorities conflict. Analyze the facts in terms of the applicable authorities. Communicate conclusions and recommendations to the client.
Describe the steps in the tax research process

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1 For an excellent discussion of explicit and implicit taxes and tax planning see M. S. Scholes, M. A. Wolfson, M. Erickson, L. Maydew, and T. Shevlin, Taxes and Business Strategy: A Planning Approach, fourth edition (Upper Saddle River, NJ: Pearson Prentice Hall, 2008). Also see Chapter I:18 of the
Individuals volume. An example of an implicit tax is the excess of the beforetax earnings on a taxable bond over the risk-adjusted before-tax earnings on a tax-favored investment (e.g., a municipal bond).
Determine the facts.
You may need to gather additional facts. You may need to restate the questions.
Identify the issues (questions).
Locate the applicable authorities.
Evaluate the authorities; choose those to follow where the authorities conflict.
Analyze the facts in terms of the applicable authorities.
Communicate conclusions and recommendations to the client.
FIGURE C:1-1
STEPS IN THE TAX RESEARCH PROCESS
ADDITIONAL COMMENT
The steps of tax research provide an excellent format for a written tax communication. For example, a good format for a client memo includes (1) statement of facts, (2) list of issues, (3) discussion of relevant authority, (4) analysis, and (5) recommendations to the client of appropriate actions based on the research results.
TYPICAL MISCONCEPTION
Many taxpayers think the tax law is all black and white. However, most tax research deals with gray areas. Ultimately, when confronted with tough issues, the ability to develop strategies that favor the taxpayer and then to find relevant authority to support those strategies will make a successful tax advisor. Thus, recognizing planning opportunities and avoiding potential traps is often the real value added by a tax advisor.
Although the above outline suggests a linear approach, the tax research process often is circular. That is, it does not always proceed step-by-step. Figure C:1-1 illustrates a more accurate process, and Appendix A provides a comprehensive example of this process. In a closed-fact situation, the facts have already occurred, and the tax advisors task is to analyze them to determine the appropriate tax treatment. In an open-fact situation, by contrast, the facts have not yet occurred, and the tax advisors task is to plan for them or shape them so as to produce a favorable tax result. The tax advisor performs the latter task by reviewing the relevant legal authorities, particularly court cases and IRS rulings, all the while bearing in mind the facts of those cases or rulings that produced favorable results compared with those that produced unfavorable results. For example, if a client wants to realize an ordinary loss (as opposed to a capital loss) on the sale of several plots of land, the tax advisor might consult cases involving similar land sales. The advisor might attempt to distinguish the facts of those cases in which the taxpayer realized an ordinary loss from the facts of those cases in which the taxpayer realized a capital loss. The advisor then might recommend that the client structure the transaction based on the fact pattern in the ordinary loss cases. Often, tax research involves a question to which no clearcut, unequivocally correct answer exists. In such situations, probing a related issue might lead to a solution pertinent to the central question. For example, in researching the issue described in the previous paragraph, i.e., whether the taxpayer may deduct a loss as ordinary instead of capital, the tax advisor might research the related issue of whether the presence of an investment motive precludes classifying a loss as ordinary. The solution to the latter issue might be relevant to the central question of whether the taxpayer may deduct the loss as ordinary. Identifying the issue(s) to be researched often is the most difficult step in the tax research process. In some instances, the client defines the issue(s) for the tax advisor, such as where the client asks, May I deduct the costs of a winter trip to Florida recommended by my physician? In other instances, the tax advisor, after reviewing the documents submitted to him or her by the client, identifies and defines the issue(s) himself or herself. Doing so presupposes a firm grounding in tax law.2
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2 Often, in an employment context, supervisors define the questions to be researched and the authorities that might be relevant to the tax consequences.
Tax Research Corporations 1-5
Once the tax advisor locates the applicable legal authorities, he or she might have to obtain additional information from the client. Example C:1-3 illustrates the point. The example assumes that all relevant tax authorities are in agreement.
EXAMPLE C:1-3 Mark calls his tax advisor, Al, and states that he (1) incurred a loss on renting his beach cottage during the current year and (2) wonders whether he may deduct the loss. He also states that he, his wife, and their minor child occupied the cottage only eight days during the current year. This is the first time Al has dealt with the Sec. 280A vacation home rules. On reading Sec. 280A(d), Al learns that a loss is not deductible if the taxpayer used the residence for personal purposes for longer than the greater of (1) 14 days or (2) 10% of the number of days the unit was rented at a fair rental value. He also learns that the property is deemed to be used by the taxpayer for personal purposes on any days on which it is used by any member of his or her family (as defined in Sec. 267(c)(4)). The Sec. 267(c)(4) definition of family members includes brothers, sisters, spouse, ancestors, or lineal descendants (i.e., children and grandchildren). Marks eight-day use is not long enough to make the rental loss nondeductible. However, Al must inquire about the number of days, if any, Marks brothers, sisters, or parents used the property. (He already knows about use by Mark, his spouse, and his lineal descendants.) In addition, Al must find out how many days the cottage was rented to other persons at a fair rental value. Upon obtaining the additional information, Al proceeds to determine how to calculate the deductible expenses. Al then derives his conclusion concerning the deductible loss, if any, and communicates it to Mark. (This example assumes the passive activity and at-risk rules restricting a taxpayers ability to deduct losses from real estate activities will not pose a problem for Mark. See Chapter I:8 of Prentice Halls Federal Taxation: Individuals for a comprehensive discussion of these topics.)
Many firms require that a researchers conclusions be communicated to the client in writing. Members or employees of such firms may answer questions orally, but their oral conclusions should be followed by a written communication. According to the AICPAs Statements on Standards for Tax Services (reproduced in Appendix E),
Although oral advice may serve a clients needs appropriately in routine matters or in welldefined areas, written communications are recommended in important, unusual, or complicated transactions. The member may use professional judgment about whether, subsequently, to document oral advice in writing.3
In addition, Treasury Department Circular 230 covers all written advice communicated to clients. These requirements are more fully discussed at the end of this chapter and in Chapter C:15 (Corporations, Partnerships, Estates, and Trusts volume).
O F T H E FA C T S T O T H E TA X C O N S E Q U E N C E S
OBJECTIVE
Explain how the facts influence the tax consequences
IM P O RTA N C E
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Many terms and phrases used in the Internal Revenue Code (IRC) and other tax authorities are vague or ambiguous. Some provisions conflict with others or are difficult to reconcile, creating for the researcher the dilemma of deciding which rules are applicable and which tax results are proper. For example, as a condition to claiming another person as a dependent, the taxpayer must provide a certain level of support for such person.4 Neither the IRC nor the Treasury Regulations define support. This lack of definition could be problematic. For example, if the taxpayer purchased a used automobile costing $8,000 for an elderly parent whose only source of income is $7,800 in Social Security benefits, the question of whether the expenditure constitutes support would arise. The tax advisor would have to consult court opinions, revenue rulings, and other IRS pronouncements to ascertain the legal meaning of the term support. Only after thorough research would the meaning of the term become clear.
3 AICPA, Statement on Standards for Tax Services, No. 7, Form and Content of Advice to Taxpayers, 2010, Para. 6.
Sec. 152(e)(1)(A) and Sec. 152(d)(1)(C).
In other instances, the legal language is quite clear, but a question arises as to whether the taxpayers transaction conforms to a specific pattern of facts that gives rise to a particular tax result. Ultimately, the peculiar facts of a transaction or event determine its tax consequences. A change in the facts can significantly change the consequences. Consider the following illustrations:
Illustration One Facts: A holds stock, a capital asset, that he purchased two years ago at a cost of $1,000. He sells the stock to B for $920. What are the tax consequences to A? Result: Under Sec. 1001, A realizes an $80 capital loss. He recognizes this loss in the current year. A must offset the loss against any capital gains recognized during the year. Any excess loss is deductible from ordinary income up to a $3,000 annual limit. Change of Facts: A is Bs son. New Result: Under Sec. 267, A and B are related parties. Therefore, A may not recognize the realized loss. However, B may use the loss if she subsequently sells the stock at a gain. Illustration Two Facts: C donates to State University ten acres of land that she purchased two years ago for $10,000. The fair market value (FMV) of the land on the date of the donation is $25,000. Cs adjusted gross income is $100,000. What is Cs charitable contribution deduction? Result: Under Sec. 170, C is entitled to a $25,000 charitable contribution deduction (i.e., the FMV of the property unreduced by the unrealized long-term gain). Change of Facts: C purchased the land 11 months ago. New Result: Under the same IRC section, C is entitled to only a $10,000 charitable contribution deduction (i.e., the FMV of the property reduced by the unrealized short-term gain). Illustration Three Facts: Acquiring Corporation pays Target Corporations shareholders one million shares of Acquiring voting stock. In return, Targets shareholders tender 98% of their Target voting stock. The acquisition is for a bona fide business purpose. Acquiring continues Targets business. What are the tax consequences of the exchange to Targets shareholders? Result: Because the transaction qualifies as a reorganization under Sec. 368(a)(1)(B), Targets shareholders are not taxed on the exchange, which is solely for Acquiring voting stock. Change of Facts: In the transaction, Acquiring purchases the remaining 2% of Targets shares with cash. New Result: Under the same IRC provision, Targets shareholders are now taxed on the exchange, which is not solely for Acquiring voting stock.
Many taxpayers believe tax practitioners spend most of their time preparing tax returns. In reality, providing tax advice that accomplishes the taxpayers objectives is one of the most important responsibilities of a tax advisor. This latter activity is tax consulting as compared to tax compliance.
C R E AT I N G A FA C T U A L S I T U AT I O N FAV O R A B L E T O T H E TA X PAY E R Based on his or her research, a tax advisor might recommend to a taxpayer how to structure a transaction or plan an event so as to increase the likelihood that related expenses will be deductible. For example, suppose a taxpayer is assigned a temporary task in a location (City Y) different from the location (City X) of his or her permanent employment. Suppose also that the taxpayer wants to deduct the meal and lodging expenses incurred in City Y as well as the cost of transportation thereto. To do so, the taxpayer must establish that City X is his or her tax home and that he or she temporarily works in City Y. (Section 162 provides that a taxpayer may deduct travel expenses while away from home on business. A taxpayer is deemed to be away from home if his or her employment at the new location does not exceed one year, i.e., it is temporary.) Suppose the taxpayer wants to know the tax consequences of his or her working in City Y for ten months and then, within that ten-month period, finding permanent employment in City Y. What is tax research likely to reveal? Tax research will lead to an IRS ruling stating that, in such circumstances, the employment will be deemed to be temporary until the date on which the realistic expectation about the temporary nature of the assignment changes.5 After this date, the employment
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Rev. Rul. 93-86, 1993-2 C.B. 71.
will be deemed to be permanent, and travel expenses relating to it will be nondeductible. Based on this finding, the tax advisor might advise the taxpayer to postpone his or her permanent job search in City Y until the end of the ten-month period and simply treat his or her assignment as temporary. So doing would lengthen the time he or she is deemed to be away from home on business and thus increase the amount of meal, lodging, and transportation costs deductible as travel expenses. The taxpayer should compare the tax savings to any additional personal costs of maintaining two residences.
TH E
OBJECTIVE
S O U R C E S O F TA X L AW
Identify the sources of tax law and understand the authoritative value of each
The language of the IRC is general; that is, it prescribes the tax treatment of broad categories of transactions and events. The reason for the generality is that Congress can neither foresee nor provide for every conceivable transaction or event. Even if it could, doing so would render the statute narrow in scope and inflexible in application. Accordingly, interpretations of the IRCboth administrative and judicialare necessary. Administrative interpretations are provided in Treasury Regulations, revenue rulings, revenue procedures, and several other pronouncements discussed later in this chapter. Judicial interpretations are presented in court opinions. The term tax law as used by most tax advisors encompasses administrative and judicial interpretations in addition to the IRC. It also includes the meaning conveyed in reports issued by Congressional committees involved in the legislative process.
ADDITIONAL COMMENT
Committee reports can be helpful in interpreting new legislation because they indicate the intent of Congress. With the proliferation of tax legislation, committee reports have become especially important because the Treasury Department often is unable to draft the needed regulations in a timely manner.
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T H E L E G I S L AT I V E P R O C E S S Tax legislation begins in the House of Representatives. Initially, a tax proposal is incorporated in a bill. The bill is referred to the House Ways and Means Committee, which is charged with reviewing all tax legislation. The Ways and Means Committee holds hearings in which interested parties, such as the Treasury Secretary and IRS Commissioner, testify. At the conclusion of the hearings, the Ways and Means Committee votes to approve or reject the measure. If approved, the bill goes to the House floor where it is debated by the full membership. If the House approves the measure, the bill moves to the Senate where it is taken up by the Senate Finance Committee. Like Ways and Means, the Finance Committee holds hearings in which Treasury officials, tax experts, and other interested parties testify. If the committee approves the measure, the bill goes to the Senate floor where it is debated by the full membership. Upon approval by the Senate, it is submitted to the President for his or her signature. If the President signs the measure, the bill becomes public law. If the President vetoes it, Congress can override the veto by at least a two-thirds majority vote in each chamber. Generally, at each stage of the legislative process, the bill is subject to amendment. If amended, and if the House version differs from the Senate version, the bill is referred to a House-Senate conference committee.6 This committee attempts to resolve the differences between the House and Senate versions. Ultimately, it submits a compromise version of the measure to each chamber for its approval. Such referrals are common. For example, in 1998 the House and Senate disagreed over what the taxpayer must do to shift the burden of proof to the IRS. The House proposed that the taxpayer assert a reasonable dispute regarding a taxable item. The Senate proposed that the taxpayer introduce credible evidence regarding the item. A conference committee was appointed to resolve the differences. This committee ultimately adopted the Senate proposal, which was later approved by both chambers. After approving major legislation, the Ways and Means Committee and Senate Finance Committee usually issue official reports. These reports, published by the U.S. Government Printing Office (GPO) as part of the Cumulative Bulletin and as separate documents, explain the committees reasoning for approving (and/or amending) the legislation.7 In addition, the GPO publishes both records of the committee hearings and transcripts of the floor debates. The records are published as separate House or Senate documents. The transcripts are incorporated in the Congressional Record for the day of the
7 The Cumulative Bulletin is described in the discussion of revenue rulings on page C:1-12.
6 The size of a conference committee can vary. It is made up of an equal number of members from the House and the Senate.
debate. In tax research, these records, reports, and transcripts are useful in deciphering the meaning of the statutory language. Where this language is ambiguous or vague, and the courts have not interpreted it, the documents can shed light on Congressional intent, i.e., what Congress intended by a particular term, phrase, or provision.
EXAMPLE C:1-4 In 1998, Congress passed legislation concerning shifting the burden of proof to the IRS. This legislation was codified in Sec. 7491. The question arises as to what constitutes credible evidence because the taxpayer must introduce such evidence to shift the burden of proof to the IRS. Section 7491 does not define the term. Because the provision was relatively new, few courts had an opportunity to interpret what credible evidence means. In the absence of relevant statutory or judicial authority, the researcher might have looked to the committee reports to ascertain what Congress intended by the term. Senate Report No. 105-174 states that credible evidence means evidence of a quality, which, after critical analysis, the court would find sufficient upon which to base a decision on the issue if no contrary evidence were submitted.8 This language suggests that Congress intended the term to mean evidence of a kind sufficient to withstand judicial scrutiny. Such a meaning should be regarded as conclusive in the absence of other authority.
ADDITIONAL COMMENT
The various tax services, discussed later in this chapter, provide IRC histories for researchers who need to work with prior years tax law.
THE INTERNAL REVENUE CODE The IRC, which comprises Title 26 of the United States Code, is the foundation of all tax law. First codified (i.e., organized into a single compilation of revenue statutes) in 1939, the tax law was recodified in 1954. The IRC was known as the Internal Revenue Code of 1954 until 1986, when its name was changed to the Internal Revenue Code of 1986. Whenever changes to the IRC are approved, the old language is deleted and new language added. Thus, the IRC is organized as an integrated document, and a researcher need not read through the relevant parts of all previous tax bills to find the current version of the law. Nevertheless, a researcher must be sure that he or she is working with the law in effect when a particular transaction occurred. The IRC contains provisions dealing with income taxes, estate and gift taxes, employment taxes, alcohol and tobacco taxes, and other excise taxes. Organizationally, the IRC is divided into subtitles, chapters, subchapters, parts, subparts, sections, subsections, paragraphs, subparagraphs, and clauses. Subtitle A contains rules relating to income taxes, and Subtitle B deals with estate and gift taxes. A set of provisions concerned with one general area constitutes a subchapter. For example, the topics of corporate distributions and adjustments appear in Subchapter C, and topics relating to partners and partnerships appear in Subchapter K. Figure C:1-2 presents the organizational scheme of the IRC. An IRC section contains the operative provisions to which tax advisors most often refer. For example, they speak of Sec. 351 transactions, Sec. 306 stock, and Sec. 1231 gains and losses. Although a tax advisor need not know all the IRC sections, paragraphs, and parts, he or she must be familiar with the IRCs organizational scheme to read and interpret it correctly. The language of the IRC is replete with cross-references to titles, paragraphs, subparagraphs, and so on.
Section 7701, a definitional section, begins, When used in this title . . . and then provides a series of definitions. Because of this broad reference, a Sec. 7701 definition applies for all of Title 26; that is, it applies for purposes of the income tax, estate and gift tax, excise tax, and other taxes governed by Title 26. Section 302(b)(3) allows taxpayers whose stock holdings are completely terminated in a redemption (a corporations purchase of its stock from one or more of its shareholders) to receive capital gain treatment on the excess of the redemption proceeds over the stocks basis instead of ordinary income treatment on the entire proceeds. Section 302(c)(2)(A) states, In the case of a distribution described in subsection (b)(3), section 318(a)(1) shall not apply if. . . . Further, Sec. 302(c)(2)(C)(i) indicates Subparagraph (A) shall not apply to a distribution to any entity unless. . . . Thus, in determining whether a taxpayer will receive capital gain treatment in a stock redemption, a tax advisor must be able to locate and interpret various crossreferenced IRC sections, subsections, paragraphs, subparagraphs, and clauses.
EXAMPLE C:1-5
EXAMPLE C:1-6
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S. Rept. No. 105-174, 105th Cong., 1st Sess. (unpaginated) (1998).
Overall Scheme Title 26. All matters concerned with taxation Subtitle A. Income taxes Chapter 1. Normal taxes and surtaxes Subchapter A. Determination of tax liability Part I. Tax on individuals Sec. 1. Tax imposed
Scheme for Sections, Subsections, etc. Sec. 165 (h) (2) (A) (i) and (ii) Section Paragraph Subparagraph Clauses
Subsection
FIGURE C:1-2
ORGANIZATIONAL SCHEME OF THE INTERNAL REVENUE CODE
T R E A S U RY R E G U L AT I O N S The Treasury Department issues regulations that expound upon the IRC. Treasury Regulations often provide examples with computations that assist the reader in understanding how IRC provisions apply. Treasury Regulations are formulated on the basis of Treasury Decisions (T.D.s). The numbers of the Treasury Decisions that form the basis of a Treasury Regulation usually are found in the notes at the end of the regulation. Because of frequent IRC changes, the Treasury Department does not always update the regulations in a timely manner. Consequently, when consulting a regulation, a tax advisor should check its introductory or end note to determine when the regulation was adopted. If the regulation was adopted before the most recent revision of the applicable IRC section, the regulation should be treated as authoritative to the extent consistent with the revision. Thus, for example, if a regulation issued before the passage of an IRC amendment specifies a dollar amount, and the amendment changed the dollar amount, the regulation should be regarded as authoritative in all respects except for the dollar amount.
PROPOSED, TEMPORARY, AND FINAL REGULATIONS. A Treasury Regulation is first issued in proposed form to the public, which is given an opportunity to comment on it. Parties most likely to comment are individual tax practitioners and representatives of organizations such as the American Bar Association, the Tax Division of the AICPA, and the American Taxation Association. The comments may suggest that the proposed rules could affect taxpayers more adversely than Congress had anticipated. In drafting a final regulation, the Treasury Department generally considers the comments and may modify the rules accordingly. If the comments are favorable, the Treasury Department usually finalizes the regulation with minor revisions. If the comments are unfavorable, it finalizes the regulation with major revisions or allows the proposed regulation to expire. Proposed regulations are just thatproposed. Consequently, they carry no more authoritative weight than do the arguments of the IRS in a court brief. Nevertheless, they represent the Treasury Departments official interpretation of the IRC. By contrast, temporary regulations are binding on the taxpayer. Effective as of the date of their publication, they often are issued immediately after passage of a major tax act to guide taxpayers and their advisors on procedural or computational matters. Regulations issued as temporary are concurrently issued as proposed. Because their issuance is not preceded by a public comment period, they are regarded as somewhat less authoritative than final regulations.
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Once finalized, regulations can be effective as of (1) the date they were proposed; (2) the date temporary regulations preceding them were first published in the Federal Register, a daily publication that contains federal government pronouncements; or (3) the date on which a notice describing the expected contents of the regulation was issued to the public.9 For changes to the IRC enacted after July 29, 1996, the Treasury Department generally cannot issue regulations with retroactive effect. INTERPRETATIVE AND LEGISLATIVE REGULATIONS. In addition to being officially classified as proposed, temporary, or final, Treasury Regulations are unofficially classified as interpretative or legislative. Interpretative regulations are issued under the general authority of Sec. 7805 and, as the name implies, merely make the IRCs statutory language easier to understand and apply. In addition, they often illustrate various computations. Legislative regulations, by contrast, arise where Congress delegates its rulemaking authority to the Treasury Department. When Congress believes it lacks the expertise necessary to deal with a highly technical matter, it instructs the Treasury Department to set forth substantive tax rules relating to the matter. Whenever the IRC contains language such as The Secretary shall prescribe such regulations as he may deem necessary or under regulations prescribed by the Secretary, the regulations interpreting the IRC provision are legislative. The consolidated tax return regulations are an example of legislative regulations. In Sec. 1502, Congress delegated to the Treasury Department authority to issue regulations that determine the tax liability of a group of affiliated corporations filing a consolidated tax return. As a precondition to filing such a return, the corporations must consent to follow the consolidated return regulations.10 Such consent generally precludes the corporations from later arguing in court that the regulatory provisions are invalid. AUTHORITATIVE WEIGHT. Final regulations are presumed to be valid and have almost the same authoritative weight as the IRC. Despite this presumption, taxpayers occasionally argue that a regulation is invalid and, consequently, should not be followed. A court will not strike down an interpretative regulation unless, in its opinion, the regulation is unreasonable and plainly inconsistent with the revenue statutes.11 In other words, a court is unlikely to invalidate a legislative regulation because it recognizes that Congress has delegated to the Treasury Department authority to issue a specific set of rules. Nevertheless, courts have invalidated legislative regulations where, in their opinion, the regulations exceeded the scope of power delegated to the Treasury Department,12 were contrary to the IRC,13 or were unreasonable.14 In assessing the validity of Treasury Regulations, some courts apply the legislative reenactment doctrine. Under this doctrine, a regulation is deemed to receive Congressional approval whenever the IRC provision under which the regulation was issued is reenacted without amendment.15 Underlying this doctrine is the rationale that, if Congress believed that the regulation offered an erroneous interpretation of the IRC, it would have amended the IRC to conform to its belief. Congresss failure to amend the IRC signifies approval of the regulation.16 This doctrine is predicated on Congresss constitutional authority to levy taxes. This authority implies that, if Congress is dissatisfied with the manner in which either the executive or the judiciary have interpreted the IRC, it can invalidate these interpretations through new legislation.
KEY POINT
The older a Treasury Regulation becomes, the less likely a court is to invalidate the regulation. The legislative reenactment doctrine holds that if a regulation did not reflect the intent of Congress, lawmakers would have changed the statute in subsequent legislation to obtain their desired objectives.
STOP & THINK Question: You are researching the manner in which a deduction is calculated. You
consult Treasury Regulations for guidance because the IRC states that the calculation is to be done in a manner prescribed by the Secretary. After reviewing these authorities, you
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Sec. 7805(b). Sec. 1501. 11 CIR v. South Texas Lumber Co., 36 AFTR 604, 48-1 USTC 5922 (USSC, 1948). In U.S. v. Douglas B. Cartwright, Executor, 31 AFTR 2d 73-1461, 73-1 USTC 12,926 (USSC, 1973), the Supreme Court concluded that a regulation dealing with the valuation of mutual fund shares for estate and gift tax purposes was invalid. 12 McDonald v. CIR, 56 AFTR 2d 5318, 85-2 USTC 9494 (5th Cir., 1985).
10
Jeanese, Inc. v. U.S., 15 AFTR 2d 429, 65-1 USTC 9259 (9th Cir., 1965). United States v. Vogel Fertilizer Co., 49 AFTR 2d 82-491, 82-1 USTC 9134 (USSC, 1982). 15 United States v. Homer O. Correll, 20 AFTR 2d 5845, 68-1 USTC 9101 (USSC, 1967). 16 One can rebut the presumption that Congress approved of the regulation by showing that Congress was unaware of the regulation when it reenacted the statute.
14
13
conclude that another way of doing the calculation arguably is correct under an intuitive approach. This approach would result in a lower tax liability for the client. Should you follow the Treasury Regulations or use the intuitive approach and argue that the regulations are invalid? Solution: Because of the language in a manner prescribed by the Secretary, the Treasury Regulations dealing with the calculation are legislative. Whenever Congress calls for legislative regulations, it explicitly authorizes the Treasury Department to write the rules. As a consequence, such regulations are more difficult than interpretative regulations to be overturned by the courts. Thus, unless you intend to challenge the Treasury Regulations and believe you will prevail in court, you should follow them.
ADDITIONAL COMMENT
Citations serve two purposes in tax research: first, they substantiate propositions; second, they enable the reader to locate underlying authority.
CITATIONS. Citations to Treasury Regulations are relatively easy to understand. One or more numbers appear before a decimal place, and several numbers follow the decimal place. The numbers immediately following the decimal place indicate the IRC section being interpreted. The numbers preceding the decimal place indicate the general subject of the regulation. Numbers that often appear before the decimal place and their general subjects are as follows:
Number General Subject Matter
1 20 25 301 601
Income tax Estate tax Gift tax Administrative and procedural matters Procedural rules
The number following the IRC section number indicates the numerical sequence of the regulation, such as the fifth regulation. No relationship exists between this number and the subsection of the IRC being interpreted. An example of a citation to a final regulation is as follows: Reg. Sec. 1.165 5
Income tax
IRC section
Fifth regulation
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Citations to proposed or temporary regulations follow the same format. They are referenced as Prop. Reg. Sec. or Temp. Reg. Sec. For temporary regulations the numbering system following the IRC section number always begins with the number of the regulation and an upper case T (e.g., -1T). Section 165 addresses the broad topic of losses and is interpreted by several regulations. According to its caption, the topic of Reg. Sec. 1.165-5 is worthless securities, which also is addressed in subsection (g) of IRC Sec. 165. Parenthetical information following the text of the Treasury Regulation indicates that the regulation was last revised on March 11, 2008, by Treasury Decision (T.D.) 9386. Section 165(g) was last amended in 2000. A researcher must always check when the regulations were last amended and be aware that an IRC change may have occurred after the most recent regulation amendment, potentially making the regulation inapplicable. When referencing a regulation, the researcher should fine-tune the citation to indicate the precise passage that supports his or her conclusion. An example of such a detailed citation is Reg. Sec. 1.165-5(j), Ex. 2(i), which refers to paragraph (i) of Example 2, found in paragraph (j) of the fifth regulation interpreting Sec. 165.
A D M I N I S T R AT I V E P R O N O U N C E M E N T S The IRS interprets the IRC through administrative pronouncements, the most important of which are discussed below. After consulting the IRC and Treasury Regulations, tax advisors are likely next to consult these pronouncements.

Even though revenue rulings do not have the same weight as Treasury Regulations or court cases, one should not underestimate their importance. Because a revenue ruling is the official published position of the IRS, in audits the examining agent will place considerable weight on any applicable revenue rulings.
REVENUE RULINGS. In revenue rulings, the IRS indicates the tax consequences of specific transactions encountered in practice. For example, in a revenue ruling, the IRS might indicate whether the exchange of stock for stock derivatives in a corporate acquisition is tax-free. The IRS issues more than 50 revenue rulings a year. These rulings do not rank as high in the hierarchy of authorities as do Treasury Regulations or federal court cases. They simply represent the IRSs view of the tax law. Taxpayers who do not follow a revenue ruling will not incur a substantial understatement penalty if they have substantial authority for different treatment.17 Nonetheless, the IRS presumes that the tax treatment specified in a revenue ruling is correct. Consequently, if an examining agent discovers in an audit that a taxpayer did not adopt the position prescribed in a revenue ruling, the agent will contend that the taxpayers tax liability should be adjusted to reflect that position. Soon after it is issued, a revenue ruling appears in the weekly Internal Revenue Bulletin (cited as I.R.B.), published by the U.S. Government Printing Office (GPO). Revenue rulings later appear in the Cumulative Bulletin (cited as C.B.), a bound volume issued semiannually by the GPO. An example of a citation to a revenue ruling appearing in the Cumulative Bulletin is as follows:
Rev. Rul. 97-4, 1997-1 C.B. 5.
This is the fourth ruling issued in 1997, and it appears on page 5 of Volume 1 of the 1997 Cumulative Bulletin. Before the GPO publishes the pertinent volume of the Cumulative Bulletin, researchers should use citations to the Internal Revenue Bulletin. An example of such a citation follows:
Rev. Rul. 2009-3, 2009-5 I.R.B. 382.
For revenue rulings (and other IRS pronouncements) issued after 1999, the full four digits of the year of issuance are set forth in the title. For revenue rulings (and other IRS pronouncements) issued before 2000, only the last two digits of the year of issuance are set forth in the title. The above citation represents the third ruling for 2009. This ruling is located on page 382 of the Internal Revenue Bulletin for the fifth week of 2009. Once a revenue ruling is published in the Cumulative Bulletin, only the citation to the Cumulative Bulletin should be used. Thus, a citation to the I.R.B. is temporary. REVENUE PROCEDURES. As the name suggests, revenue procedures are IRS pronouncements that usually deal with the procedural aspects of tax practice. For example, one revenue procedure deals with the manner in which tip income should be reported. Another revenue procedure describes the requirements for reproducing paper substitutes for informational returns such as Form 1099. As with revenue rulings, revenue procedures are published first in the Internal Revenue Bulletin, then in the Cumulative Bulletin. An example of a citation to a revenue procedure appearing in the Cumulative Bulletin is as follows:
SELF-STUDY QUESTION
Are letter rulings of precedential value for third parties?
Rev. Proc. 97-19, 1997-1 C.B. 644.
ANSWER
No. A letter ruling is binding only on the taxpayer to whom the ruling was issued. Nevertheless, letter rulings can be very useful to third parties because they provide insight as to the IRSs opinion about the tax consequences of various transactions.
This pronouncement is found in Volume 1 of the 1997 Cumulative Bulletin on page 644. It is the nineteenth revenue procedure issued in 1997. In addition to revenue rulings and revenue procedures, the Cumulative Bulletin contains IRS notices, as well as the texts of proposed regulations, tax treaties, committee reports, and U.S. Supreme Court decisions.
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LETTER RULINGS. Letter rulings are initiated by taxpayers who ask the IRS to explain the tax consequences of a particular transaction.18 The IRS provides its explanation in the form of a letter ruling, a response personal to the taxpayer requesting an answer. Only the
18
17 Chapter C:15 discusses the authoritative support taxpayers and tax advisors should have for positions they adopt on a tax return.
Chapter C:15 further discusses letter rulings.
taxpayer to whom the ruling is addressed may rely on it as authority. Nevertheless, letter rulings are relevant for other taxpayers and tax advisors because they offer insight into the IRSs position on the tax treatment of particular transactions. Originally the public did not have access to letter rulings issued to other taxpayers. As a result of Sec. 6110, enacted in 1976, letter rulings (with confidential information deleted) are accessible to the general public and have been reproduced by major tax services. An example of a citation to a letter ruling appears below:
Ltr. Rul. 200130006 (July 30, 2001).
The first four digits (two if issued before 2000) indicate the year in which the ruling was made public, in this case, 2001.19 The next two digits denote the week in which the ruling was made public, here the thirtieth. The last three numbers indicate the numerical sequence of the ruling for the week, here the sixth. The date in parentheses denotes the date of the ruling.
ADDITIONAL COMMENT
A technical advice memorandum is published as a letter ruling. Whereas a taxpayer-requested letter ruling deals with prospective transactions, a technical advice memorandum deals with past or consummated transactions.
OTHER INTERPRETATIONS Technical Advice Memoranda. When the IRS audits a taxpayers return, the IRS agent might ask the IRS national office for advice on a complicated, technical matter. The national office will provide its advice in a technical advice memorandum, released to the public in the form of a letter ruling.20 Researchers can identify which letter rulings are technical advice memoranda by introductory language such as, In response to a request for technical advice. . . . An example of a citation to a technical advice memorandum is as follows:
T.A.M. 9801001 (January 2, 1998).
This citation refers to the first technical advice memorandum issued in the first week of 1998. The memorandum is dated January 2, 1998. Information Releases. If the IRS wants to disseminate information to the general public, it will issue an information release. Information releases are written in lay terms and are dispatched to thousands of newspapers throughout the country. The IRS, for example, may issue an information release to announce the standard mileage rate for business travel. An example of a citation to an information release is as follows:
I.R. 86-70 (June 12, 1986).
This citation is to the seventieth information release issued in 1986. The release is dated June 12, 1986.
ADDITIONAL COMMENT
Announcements are used to summarize new tax legislation or publicize procedural matters. Announcements generally are aimed at tax practitioners and are considered to be substantial authority [Rev. Rul. 90-91, 1990-2 C.B. 262].
Announcements and Notices. The IRS also disseminates information to tax practitioners in the form of announcements and notices. These pronouncements generally are more technical than information releases and frequently address current tax developments. After passage of a major tax act, and before the Treasury Department has had an opportunity to issue proposed or temporary regulations, the IRS may issue an announcement or notice to clarify the legislation. The IRS is bound to follow the announcement or notice just as it is bound to follow a revenue procedure or revenue ruling. Examples of citations to announcements and notices are as follows:
Announcement 2007-3, 2007-4 I.R.B. 376. Notice 2007-9, 2007-5 I.R.B. 401.
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The first citation is to the third announcement issued in 2007. It can be found on page 376 of the fourth Internal Revenue Bulletin for 2007. The second citation is to the ninth
19 Sometimes a letter ruling is cited as PLR (private letter ruling) instead of Ltr. Rul.
20
Technical advice memoranda are discussed further in Chapter C:15.
notice issued in 2007. It can be found on page 401 of the fifth Internal Revenue Bulletin for 2007. Notices and announcements appear in both the Internal Revenue Bulletin and the Cumulative Bulletin.
JUDICIAL DECISIONS Judicial decisions are an important source of tax law. Judges are reputed to be unbiased individuals who decide questions of fact (the existence of a fact or the occurrence of an event) or questions of law (the applicability of a legal principle or the proper interpretation of a legal term or provision). Judges do not always agree on the tax consequences of a particular transaction or event. Therefore, tax advisors often must derive conclusions against a background of conflicting judicial authorities. For example, a U.S. district court might disagree with the Tax Court on the deductibility of an expense. Likewise, one circuit court might disagree with another circuit court on the same issue.
OVERVIEW OF THE COURT SYSTEM. A taxpayer may begin tax litigation in any of three courts: the U.S. Tax Court, the U.S. Court of Federal Claims (formerly the U.S. Claims Court), or U.S. district courts. Court precedents are important in deciding where to begin such litigation (see page C:1-21 for a discussion of precedent). Also important is when the taxpayer must pay the deficiency the IRS contends is due. A taxpayer who wants to litigate either in a U.S. district court or in the U.S. Court of Federal Claims must first pay the deficiency. The taxpayer then files a claim for refund, which the IRS is likely to deny. Following this denial, the taxpayer must petition the court for a refund. If the court grants the taxpayers petition, he or she receives a refund of the taxes in question plus accrued interest. If the taxpayer begins litigation in the Tax Court, on the other hand, he or she need not pay the deficiency unless and until the court decides the case against him or her. In that event, the taxpayer also must pay interest and penalties.21 A taxpayer who believes that a jury would be sympathetic to his or her case should litigate in a U.S. district court, the only forum where a jury trial is possible. If a party loses at the trial court level, it can appeal the decision to a higher court. Appeals of Tax Court and U.S. district court decisions are made to the court of appeals for the taxpayers circuit. The appeals court system is comprised of 11 geographical circuits designated by numbers, the District of Columbia Circuit, and the Federal Circuit.22 Table C:1-1 shows the states that lie in the various circuits. California, for example, lies in the Ninth Circuit. When referring to these appellate courts, instead of saying, for example, the Court of Appeals for the Ninth Circuit, one generally says the Ninth Circuit. All decisions of the U.S. Court of Federal Claims are appealable to one courtthe Court of Appeals for the Federal Circuitirrespective of where the taxpayer resides or does business.23 The only cases the Federal Circuit hears are those that originate in the U.S. Court of Federal Claims. The party losing at the appellate level can petition the U.S. Supreme Court to review the case under a writ of certiorari. If the Supreme Court agrees to hear the case, it grants certiorari.24 If it refuses to hear the case, it denies certiorari. In recent years, the Court has granted certiorari in only about six to ten tax cases per year. Figure C:1-3 and Table C:1-2 provide an overview and summary of the court system with respect to tax matters. THE U.S. TAX COURT. The U.S. Tax Court was created in 1942 as a successor to the Board of Tax Appeals. It is a court of national jurisdiction that hears only tax-related cases. All taxpayers, regardless of their state of residence or place of business, may litigate in the Tax Court. It has 19 judges, including one chief judge.25 The President, with the consent of the Senate, appoints the judges for a 15-year term and may reappoint them for an additional
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SELF-STUDY QUESTION
What are some of the factors that a taxpayer should consider when deciding in which court to file a tax-related claim?
ANSWER
(1) Each courts published precedent pertaining to the issue, (2) desirability of a jury trial, (3) tax expertise of each court, and (4) when the deficiency must be paid.
ADDITIONAL COMMENT
Because the Tax Court deals only with tax cases, it presumably has a higher level of tax expertise than do other courts. Tax Court judges are appointed by the President, in part, due to their considerable tax experience. The Tax Court typically maintains a large backlog of tax cases, sometimes numbering in the tens of thousands.
Revenue Procedure 2005-18, 2005-1 C.B. 798, provides procedures for taxpayers to make remittances or apply overpayments to stop the accrual of interest on deficiencies. 22 The Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws. 23 The Court of Claims was reconstituted as the United States Court of Claims in 1982. In 1992, this court was renamed the U.S. Court of Federal Claims.
21
24 The granting of certiorari signifies that the Supreme Court is granting an appellate review. The denial of certiorari does not necessarily mean that the Supreme Court endorses the lower courts decision. It simply means the court has decided not to hear the case. 25 The Tax Court also periodically appoints, depending on budgetary constraints, a number of trial judges and senior judges who hear cases and render decisions with the same authority as the regular Tax Court judges.
Tax Research Corporations 1-15 TABLE C:1-1
Federal Judicial Circuits

Circuit First Second Third Fourth Fifth Sixth Seventh Eighth Ninth Tenth Eleventh D.C. Federal States Included in Circuit Maine, Massachusetts, New Hampshire, Rhode Island, Puerto Rico Connecticut, New York, Vermont Delaware, New Jersey, Pennsylvania, Virgin Islands Maryland, North Carolina, South Carolina, Virginia, West Virginia Louisiana, Mississippi, Texas Kentucky, Michigan, Ohio, Tennessee Illinois, Indiana, Wisconsin Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, Northern Marina Islands Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming Alabama, Florida, Georgia District of Columbia All jurisdictions (for taxpayers appealing from the U.S. Court of Federal Claims)
U.S. Supreme Court a
Appellate Courts:
Court of Appeals for taxpayer's geographical jurisdiction (First through Eleventh Circuits and D.C. Circuit)
Court of Appeals for Federal Circuit
Courts of Original Jurisdiction (Trial Courts):
U.S.Tax Court Do Not Pay Deficiency First

a
U.S. District Court for taxpayers district
U.S. Court of Federal Claims
Pay Deficiency First
Cases are heard only if the Supreme Court grants certiorari.
FIGURE C:1-3
OVERVIEW OF COURT SYSTEMTAX MATTERS
term. The judges, specialists in tax-related matters, periodically travel to roughly 100 cities throughout the country to hear cases. In most instances, only one judge hears a case. The Tax Court issues both regular and memorandum (memo) decisions. Generally, the first time the Tax Court decides a legal issue, its decision appears as a regular decision. Memo decisions, on the other hand, usually deal with factual variations of previously decided cases. Nevertheless, regular and memo decisions carry the same authoritative weight. At times, the chief judge determines that a particular case concerns an important issue that the entire Tax Court should consider. In such a situation, the words reviewed by the court appear at the end of the majority opinion. Any concurring or dissenting opinions follow the majority opinion. A judge who issues a concurring opinion agrees with the basic outcome of the majoritys decision but not with its rationale. A judge who issues a dissenting opinion believes the majority reached an erroneous conclusion.
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TABLE C:1-2
Summary of Court SystemTax Matters

Number of Judges on Each 128*
Court(s) (Number of) U.S. district courts (over 95) U.S. Tax Court (1)
Personal Jurisdiction Local
Subject Matter Jurisdiction General
Determines Questions of Fact Yes
Trial by Jury Yes
Precedents Followed Same court Court for circuit where situated U.S. Supreme Court Same court Court for taxpayers circuit U.S. Supreme Court Same court Federal Circuit Court U.S. Supreme Court Same court U.S. Supreme Court Same court
Where Opinions Published Federal Supplement American Federal Tax Reports United States Tax Cases Tax Court of the U.S. Reports CCH Tax Court Memorandum Decisions RIA Tax Court Memorandum Decisions Federal Reporter (pre-1982) U.S. Court of Federal Claims American Federal Tax Reports United States Tax Cases Federal Reporter American Federal Tax Reports United States Tax Cases U.S. Supreme Court Reports Supreme Court Reporter United States Reports, Lawyers Edition American Federal Tax Reports United States Tax Cases
19
National
Tax
Yes
No
U.S. Court of Federal Claims (1)
16
National
Claims against U.S. Government General
Yes
No
U.S. Courts of Appeals (13) U.S. Supreme Court (1)
About 20
Regional
No
No
National
General
No
No
*Although the number of judges assigned to each court varies, only one judge hears a case.
ISBN 1-256-33710-2 Prentice Hall's Federal Taxation 2012 Corporations, Partnerships, Estates & Trusts, Twenty Fifth Edition, by Kenneth E. Anderson, Thomas R. Pope, and John L. Kramer. Published by Prentice Hall. Copyright 2012 by Pearson Education, Inc.
Another phrase sometimes appearing at the end of a Tax Court opinion is Entered under Rule 155. This phrase signifies that the court has reached a decision concerning the tax treatment of an item but has left computation of the deficiency to the two litigating parties.
SELF-STUDY QUESTION
What are some of the considerations for litigating under the small cases procedure of the Tax Court?
ANSWER
The small cases procedure gives the taxpayer the advantage of having his or her day in court without the expense of an attorney. But if the taxpayer loses, the decision cannot be appealed.
Small Cases Procedure. Taxpayers have the option of having their cases heard under the small cases procedure of the Tax Court if the amount in controversy on an annual basis does not exceed $50,000.26 This procedure is less formal than the regular Tax Court procedure, and taxpayers can represent themselves without an attorney.27 The cases are heard by special commissioners instead of by one of the 19 Tax Court judges. A disadvantage of the small cases procedure for the losing party is that the decision cannot be appealed. The opinions of the commissioners generally are not published and have no precedential value. Acquiescence Policy. The IRS has adopted a policy of announcing whether, in future cases involving similar facts and similar issues, it will follow federal court decisions that are adverse to it. This policy is known as the IRS acquiescence policy. If the IRS wants taxpayers to know that it will follow an adverse decision in future cases involving similar facts and issues, it will announce its acquiescence in the decision. Conversely, if it wants taxpayers to know that it will not follow the decision in such future cases, it will announce its nonacquiescence. The IRS does not announce its acquiescence or nonacquiescence in every decision it loses. The IRS publishes its acquiescences and nonacquiescences as Actions on Decision first in the Internal Revenue Bulletin, then in the Cumulative Bulletin. Before 1991, the IRS acquiesced or nonacquiesced in regular Tax Court decisions only. In 1991, it broadened the scope of its policy to include adverse U.S. Claims Court, U.S. district court, and U.S. circuit court decisions. In cases involving multiple issues, the IRS may acquiesce in some issues but not others. In decisions supported by extensive reasoning, it may acquiesce in the result but not the rationale (acq. in result). Furthermore, it may retroactively revoke an acquiescence or nonacquiescence. The footnotes to the relevant announcement in the Internal Revenue Bulletin and Cumulative Bulletin indicate the nature and extent of IRS acquiescences and nonacquiescences. These acquiescences and nonacquiescences have important implications for taxpayers. If a taxpayer bases his or her position on a decision in which the IRS has nonacquiesced, he or she can expect an IRS challenge in the event of an audit. In such circumstances, the taxpayers only recourse may be litigation. On the other hand, if the taxpayer bases his or her position on a decision in which the IRS has acquiesced, he or she can expect little or no challenge. In either case, the examining agent will be bound by the IRS position. Published Opinions and Citations. Regular Tax Court decisions are published by the U.S. Government Printing Office in a bound volume known as the Tax Court of the United States Reports. Soon after a decision is made public, Research Institute of America (RIA) and CCH Incorporated (CCH) each publish the decision in its respective reporter of Tax Court decisions. An official citation to a Tax Court decision is as follows:28
MedChem Products, Inc., 116 T.C. 308 (2001).
ADDITIONAL COMMENT
The only cases with respect to which the IRS will acquiesce or nonacquiesce are decisions that the government loses. Because the majority of cases, particularly Tax Court cases, are won by the government, the IRS will potentially acquiesce in only a small number of cases.
ADDITIONAL COMMENT
If a particular case is important, the chief judge will instruct the other judges to review the case. If a case is reviewed by the entire court, the phrase reviewed by the court is inserted immediately after the text of the majority opinion. A reviewed decision provides an opportunity for Tax Court judges to express their dissenting opinions.
The citation indicates that this case appears on page 308 in Volume 116 of Tax Court of the United States Reports and that the case was decided in 2001.
28 In a citation to a case decided by the Tax Court, only the name of the plaintiff (taxpayer) is listed. The defendant is understood to be the Commissioner of Internal Revenue whose name usually is not shown in the citation. In cases decided by other courts, the name of the plaintiff is listed first and the name of the defendant second. For non-Tax Court cases, the Commissioner of Internal Revenue is referred to as CIR in our footnotes and text.
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26 Sec. 7463. The $50,000 amount includes penalties and additional taxes but excludes interest. 27 Taxpayers also can represent themselves in regular Tax Court proceedings even though they are not attorneys. Where taxpayers represent themselves, the words pro se appear in the opinion after the taxpayers name. The Tax Court is the only federal court before which non-attorneys, including CPAs, may practice.
From 1924 to 1942, regular decisions of the Board of Tax Appeals (predecessor of the Tax Court) were published by the U.S. Government Printing Office in the United States Board of Tax Appeals Reports. An example of a citation to a Board of Tax Appeals case is as follows:
J.W. Wells Lumber Co. Trust A., 44 B.T.A. 551 (1941).
ADDITIONAL COMMENT
Once the IRS has acquiesced in a federal court decision, other taxpayers generally will not need to litigate the same issue. However, the IRS can change its mind and revoke a previous acquiescence or nonacquiescence. References to acquiescences or nonacquiescences in federal court decisions can be found in the citators.
This case is found in Volume 44 of the United States Board of Tax Appeals Reports on page 551. It is a 1941 decision. If the IRS has acquiesced or nonacquiesced in a federal court decision, the IRSs action should be denoted in the citation. At times, the IRS will not announce its acquiescence or nonacquiescence until several years after the date of the decision. An example of a citation to a decision in which the IRS has acquiesced is as follows:
Security State Bank, 111 T.C. 210 (1998), acq. 2001-1 C.B. xix.
The case appears on page 210 of Volume 111 of the Tax Court of the United States Reports and the acquiescence is reported on page xix of Volume 1 of the 2001 Cumulative Bulletin. In 2001, the IRS acquiesced in this 1998 decision. A citation to a decision in which the IRS has nonacquiesced is as follows:
Estate of Algerine Allen Smith, 108 T.C. 412 (1997), nonacq. 2000-1 C.B. xvi.
The case appears on page 412 of Volume 108 of the Tax Court of the United States Reports. The nonacquiescence is reported on page xvi of Volume 1 of the 2000 Cumulative Bulletin. In 2000, the IRS nonacquiesced in this 1997 decision. Tax Court memo decisions are not published by the U.S. Government Printing Office. They are, however, published by RIA in RIA T.C. Memorandum Decisions and by CCH in CCH Tax Court Memorandum Decisions. In addition, shortly after its issuance, an opinion is made available electronically and in loose-leaf form by RIA and CCH in their respective tax services. The following citation is to a Tax Court memo decision:
KEY POINT
To access all Tax Court cases, a tax advisor must refer to two different publications. The regular opinions appear in the Tax Court of the United States Reports, published by the U.S. Government Printing Office, and the memo decisions are published by both RIA (formerly PH) and CCH in their own court reporters.
Edith G. McKinney, 1981 PH T.C. Memo 81,181, 41 TCM 1272.
McKinney is found at Paragraph 81,181 of Prentice Halls (now RIAs)29 1981 PH T.C. Memorandum Decisions reporter, and in Volume 41, page 1272, of CCHs Tax Court Memorandum Decisions. The 181 in the PH citation indicates that the case is the Tax Courts 181st memo decision of the year. A more recent citation is formatted in the same way but refers to RIA memo decisions.
Paul F. Belloff, 1992 RIA T.C. Memo 92,346, 63 TCM 3150.
U.S. DISTRICT COURTS. Each state has at least one U.S. district court, and more populous states have more than one. Each district court is independent of the others and is thus free to issue its own decisions, subject to the precedential constraints discussed later in this chapter. Different types of casesnot just tax-relatedare adjudicated in this forum. A district court is the only forum in which the taxpayer may have a jury decide questions of fact. Depending on the circumstances, a jury trial might be advantageous for the taxpayer.30 District court decisions are officially reported in the Federal Supplement (cited as F. Supp.) published by West Publishing Co. (West). Some decisions are not officially
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29 For several years the Prentice Hall Information Services division published its Federal Taxes 2nd tax service and a number of related publications, such as the PH T.C. Memorandum Decisions. Changes in ownership occurred, and in late 1991 Thomson Professional Publishing added the former Prentice Hall tax materials to the product line of its RIA tax publishing division. Some
print products such as the PH T.C. Memorandum Decisions still have the Prentice Hall name on the spine of older editions. 30 Taxpayers might prefer to have a jury trial if they believe a jury will be sympathetic to their case.
reported and are referred to as unreported decisions. Decisions by U.S. district courts on the topic of taxation also are published by RIA and CCH in secondary reporters that contain only tax-related opinions. RIAs reporter is American Federal Tax Reports (cited as AFTR).31 CCHs reporter is U.S. Tax Cases (cited as USTC). A case not offically reported nevertheless might be published in the AFTR and USTC. An example of a complete citation to a U.S. district court decision is as follows:
Alfred Abdo, Jr. v. IRS, 234 F. Supp. 2d 553, 90 AFTR 2d 2002-7484, 2003-1 USTC 50,107 (DC North Carolina, 2002).
ADDITIONAL COMMENT
A citation, at a minimum, should contain the following information: (1) the name of the case, (2) the reporter that publishes the case along with both a volume and page (or paragraph) number, (3) the year the case was decided, and (4) the court that decided the case.
In the example above, the primary citation is to the Federal Supplement. The case appears on page 553 of Volume 234 of the second series of this reporter. Secondary citations are to American Federal Tax Reports and U.S. Tax Cases. The same case is found in Volume 90 of the second series of the AFTR, page 2002-7484 (meaning page 7484 in the volume containing 2002 cases) and in Volume 1 of the 2003 USTC at Paragraph 50,107. The parenthetical information indicates that the case was decided in 2002 by the U.S. District Court for North Carolina. Because some judicial decisions have greater precedential weight than others (e.g., a Supreme Court decision versus a district court decision), information relating to the identity of the adjudicating court is useful in evaluating the authoritative value of the decision. U.S. COURT OF FEDERAL CLAIMS. The U.S. Court of Federal Claims, another court of first instance that addresses tax matters, has nationwide jurisdiction. Originally, this court was called the U.S. Court of Claims (cited as Ct. Cl.), and its decisions were appealable to the U.S. Supreme Court only. In a reorganization, effective October 1, 1982, the reconstituted court was named the U.S. Claims Court (cited as Cl. Ct.), and its decisions became appealable to the Circuit Court of Appeals for the Federal Circuit. In October 1992, the courts name was again changed to the U.S. Court of Federal Claims (cited as Fed. Cl.). Beginning in 1982, U.S. Claims Court decisions were reported officially in the Claims Court Reporter, published by West from 1982 to 1992.32 An example of a citation to a U.S. Claims Court decision appears below:
Benjamin Raphan v. U.S., 3 Cl. Ct. 457, 52 AFTR 2d 83-5987, 83-2 USTC 9613 (1983).
ADDITIONAL COMMENT
The U.S. Court of Federal Claims adjudicates claims (including suits to recover federal income taxes) against the U.S. Government. This court usually hears cases in Washington, D.C., but will hold sessions in other locations as the court deems necessary.
The Raphan case appears on page 457 of Volume 3 of the Claims Court Reporter. Secondary citations are to Volume 52, page 83-5987 of the AFTR, Second Series, and to Volume 2 of the 1983 USTC at Paragraph 9613. Effective with the 1992 reorganization, decisions of the U.S. Court of Federal Claims are now reported in the Federal Claims Reporter. An example of a citation to an opinion published in this reporter is presented below:
Jeffrey G. Sharp v. U.S., 27 Fed. Cl. 52, 70 AFTR 2d 92-6040, 92-2 USTC 50,561 (1992).
The Sharp case appears on page 52 of Volume 27 of the Federal Claims Reporter, on page 6040 of the 70th volume of the AFTR, Second Series, and at Paragraph 50,561 of Volume 2 of the 1992 USTC reporter. Note that, even though the name of the reporter published by West has changed, the volume numbers continue in sequence as if no name change had occurred.
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31 The American Federal Tax Reports (AFTR) is published in two series. The first series, which includes opinions issued up to 1957, is cited as AFTR. The second series, which includes opinions issued after 1957, is cited as AFTR 2d. The Alfred Abdo, Jr. decision cited as an illustration of a U.S. district court decision appears in the second American Federal Tax Reports series. 32 Before the creation in 1982 of the U.S. Claims Court (and the Claims
Court Reporter), the opinions of the U.S. Court of Claims were reported in either the Federal Supplement (F. Supp.) or the Federal Reporter, Second Series (F.2d). The Federal Supplement is the primary source of U.S. Court of Claims opinions from 1932 through January 19, 1960. Opinions issued from January 20, 1960, to October 1982 are reported in the Federal Reporter, Second Series.
CIRCUIT COURTS OF APPEALS. Lower court decisions are appealable by the losing party to the court of appeals for the circuit in which the litigation originated. Generally, if the case began in the Tax Court or a U.S. district court, the case is appealable to the circuit for the individuals residence as of the appeal date. For a corporation, the case is appealable to the circuit for the corporations principal place of business. The Federal Circuit hears all appeals of cases originating in the U.S. Court of Federal Claims. As mentioned earlier, there are 11 geographical circuits designated by numbers, the District of Columbia Circuit, and the Federal Circuit. In October 1981, the Eleventh Circuit was created by moving Alabama, Georgia, and Florida from the Fifth to a new geographical circuit. The Eleventh Circuit has adopted the policy of following as precedent all decisions of the Fifth Circuit during the time the states currently constituting the Eleventh Circuit were part of the Fifth Circuit.33
EXAMPLE C:1-7 In the current year, the Eleventh Circuit first considered an issue in a case involving a Florida taxpayer. In 1980, the Fifth Circuit had ruled on the same issue in a case involving a Louisiana taxpayer. Because Florida was part of the Fifth Circuit in 1980, under the policy adopted by the Eleventh Circuit, it will follow the Fifth Circuits earlier decision. Had the Fifth Circuits decision been rendered in 1982after the creation of the Eleventh Circuitthe Eleventh Circuit would not have been bound by the Fifth Circuits decision.
As the later discussion of precedent points out, different circuits may reach different conclusions concerning similar facts and issues. Circuit court decisionsregardless of topic (e.g., civil rights, securities law, and taxation)are now reported officially in the Federal Reporter, Third Series (cited as F.3d), published by West. The third series was created in October 1993 after the volume number for the second series reached 999. The primary citation to a circuit court opinion should be to the Federal Reporter. Tax decisions of the circuit courts also appear in the American Federal Tax Reports and U.S. Tax Cases. Below is an example of a citation to a 1994 circuit court decision:
Leonard Greene v. U.S., 13 F.3d 577, 73 AFTR 2d 94-746, 94-1 USTC 50,022 (2nd Cir., 1994).
The Greene case appears on page 577 of Volume 13 of the Federal Reporter, Third Series. It also is published in Volume 73, page 94-746 of the AFTR, Second Series, and in Volume 1, Paragraph 50,022, of the 1994 USTC. The parenthetical information indicates that the Second Circuit decided the case in 1994. (A Federal Reporter, Second Series reference is found in footnote 33 of this chapter.)
ADDITIONAL COMMENT
A judge is not required to follow judicial precedent beyond his or her jurisdiction. Thus, the Tax Court, the U.S. district courts, and the U.S. Court of Federal Claims are not required to follow the others decisions, nor is a circuit court required to follow the decision of a different circuit court.
U.S. SUPREME COURT. Whichever party loses at the appellate level can request that the U.S. Supreme Court hear the case. The Supreme Court, however, hears very few tax cases. Unless the circuits are divided on the tax treatment of an item, or the issue is deemed to be of great significance, the Supreme Court probably will not hear the case.34 Supreme Court decisions are the law of the land and take precedence over all other court decisions, including the Supreme Courts earlier decisions. As a practical matter, a Supreme Court interpretation of the IRC is almost as authoritative as an act of Congress. If Congress does not agree with the Courts interpretation, it can amend the IRC to achieve a different result and has in fact done so on a number of occasions. If the Supreme Court declares a tax statute to be unconstitutional, the statute is invalid. All Supreme Court decisions, regardless of subject, are published in the United States Supreme Court Reports (cited as U.S.) by the U.S. Government Printing Office, the Supreme Court Reporter (cited as S. Ct.) by West, and the United States Reports, Lawyers Edition (cited as L. Ed.) by Lawyers Co-operative Publishing Co. In addition,
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Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir., 1981). Vogel Fertilizer Co. v. U.S., 49 AFTR 2d 82-491, 82-1 USTC 9134 (USSC, 1982), is an example of a case the Supreme Court heard to settle a
34
33
split in judicial authority. The Fifth Circuit, the Tax Court, and the Court of Claims had reached one conclusion on an issue, while the Second, Fourth, and Eighth Circuits had reached another.
the AFTR and USTC reporters published by RIA and CCH, respectively, contain Supreme Court decisions concerned with taxation. An example of a citation to a Supreme Court opinion appears below:
Boeing Company v. U.S., 537 U.S. 437, 91 AFTR 2d 2003-1088, 2003-1 USTC 50,273 (USSC, 2003).
SELF-STUDY QUESTION
Is it possible for the Tax Court to intentionally issue conflicting decisions?
According to the primary citation, this case appears in Volume 537, page 437, of the United States Supreme Court Reports. According to the secondary citation, it also appears in Volume 91, page 2003-1088, of the AFTR, Second Series, and in Volume 1, Paragraph 50,273, of the 2003 USTC. Table C:1-3 provides a summary of how the IRC, court decisions, revenue rulings, revenue procedures, and other administrative pronouncements should be cited. Primary citations are to the reporters published by West or the U.S. Government Printing Office, and secondary citations are to the AFTR and USTC. PRECEDENTIAL VALUE OF VARIOUS DECISIONS. Tax Court. The Tax Court is a court of national jurisdiction. Consequently, it generally rules uniformly for all taxpayers, regardless of their residence or place of business. It follows U.S. Supreme Court decisions and its own earlier decisions. It is not bound by cases decided by the U.S. Court of Federal Claims or a U.S. district court, even if the district court has jurisdiction over the taxpayer. In 1970, the Tax Court adopted what is known as the Golsen Rule.35 Under this rule, the Tax Court departs from its general policy of adjudicating uniformly for all taxpayers and instead follows the decisions of the court of appeals to which the case in question is appealable. Stated differently, the Golsen Rule mandates that the Tax Court rule consistently with decisions of the court for the circuit where the taxpayer resides or does business.
In the year in which an issue was first litigated, the Tax Court decided that an expenditure was deductible. The government appealed the decision to the Tenth Circuit Court of Appeals and won a reversal. This is the only appellate decision regarding the issue. If and when the Tax Court addresses this issue again, it will hold, with one exception, that the expenditure is deductible. The exception applies to taxpayers in the Tenth Circuit. Under the Golsen Rule, these taxpayers will be denied the deduction.
ANSWER
Yes. If the Tax Court issues two decisions that are appealable to different circuit courts and these courts have previously reached different conclusions on the issue, the Tax Court follows the respective precedent in each circuit and issues conflicting decisions. This is a result of the Golsen Rule.
EXAMPLE C:1-8
U.S. District Court. Because each U.S. district court is independent of the other district courts, the decisions of each have precedential value only within its own jurisdiction (i.e., only with respect to subsequent cases brought before that court). District courts must follow decisions of the U.S. Supreme Court, the circuit court to which the case is appealable, and the district courts own earlier decisions regarding similar facts and issues.
EXAMPLE C:1-9 The U.S. District Court for Rhode Island, the Tax Court, and the Eleventh Circuit have decided cases involving similar facts and issues. Any U.S. district court within the Eleventh Circuit must follow that circuits decision in future cases involving similar facts and issues. Likewise, the U.S. District Court for Rhode Island must decide such cases consistently with its previous decision. Tax Court decisions are not binding on the district courts. Thus, all district courts other than the one for Rhode Island and those within the Eleventh Circuit are free to decide such cases independently.
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U.S. Court of Federal Claims. In adjudicating a case, the U.S. Court of Federal Claims must rule consistently with U.S. Supreme Court decisions, decisions of the Circuit Court of Appeals for the Federal Circuit, and its own earlier decisions, including those rendered when the court had a different name. It need not follow decisions of other circuit courts, the Tax Court, or U.S. district courts.
35
The Golsen Rule is based on the decision in Jack E. Golsen, 54 T.C. 742 (1970).
1-22 Corporations Chapter 1 TABLE C:1-3
Summary of Tax-related Primary SourcesStatutory and Administrative

Source Name U.S. Code, Title 26 Code of Federal Regulations, Title 26 Publisher Government Printing Office Government Printing Office Materials Provided Internal Revenue Code Treasury Regulations (final) Treasury Regulations (temporary) Treasury Regulations (proposed) Treasury decisions Revenue rulings Revenue procedures Committee reports Public laws Announcements Notices Treasury Regulations (proposed) Treasury decisions Revenue rulings Revenue procedures Committee reports Public laws Announcements Notices Citation Example Sec. 441(b) Reg. Sec. 1.461-1(c) Temp. Reg. Sec. 1.62-1T(e) Prop. Reg. Sec. 1.671-1(h) T.D. 8756 (January 13, 1998) Rev. Rul. 2009-33, 2009-40 I.R.B. 447 Rev. Proc. 2009-52, 2009-49 I.R.B. 744 S.Rept. No. 105-33, 105th Cong., 1st Sess., p. 308 (1997) P.L. 105-34, Sec. 224(a), enacted August 6, 1997 Announcement 2007-3, 2007-4 I.R.B. 376 Notice 2009-21, 2009-13 I.R.B. 724 Prop. Reg. Sec. 1.671-1(h) T.D. 8756 (January 12, 1998) Rev. Rul. 84-111, 1984-2 C.B. 88 Rev. Proc. 77-28, 1977-2 C.B. 537 S.Rept. No. 105-33, 105th Cong., 1st Sess., p. 308 (1997) P.L. 105-34, Sec. 224(a), enacted August 6, 1997 Announcement 2006-8, 2006-1 C.B. 344 Notice 88-74, 1988-2 C.B. 385
Internal Revenue Bulletin
Government Printing Office
Cumulative Bulletin
Government Printing Office
Summary of Tax-related Primary and Secondary SourcesJudicial

Reporter Name U.S. Supreme Court Reports Supreme Court Reports Federal Reporter (1st3rd Series) Federal Supplement Series U.S. Court of Federal Claims Tax Court of the U.S. Reports Tax Court Memorandum Decisions RIA Tax Court Memorandum Decisions American Federal Tax Reports U.S. Tax Cases Publisher Government Printing Office West Publishing Company West Publishing Company Decisions Published U.S. Supreme Court U.S. Supreme Court U.S. Court of Appeal Pre-1982 Court of Claims U.S. District Court Court of Federal Claims U.S. Tax Court regular U.S. Tax Court memo U.S. Tax Court memo Tax: all federal courts except Tax Court Tax: all federal courts except Tax Court Citation Example Boeing Company v. U.S., 537 U.S. 437 (2003) Boeing Company v. U.S., 123 S. Ct. 1099 (2003) Leonard Greene v. U.S., 13 F.3d 577 (2nd Cir., 1994) Alfred Abdo, Jr. v. IRS, 234 F. Supp. 2d 553 (DC North Carolina, 2002) Jeffery G. Sharp v. U.S., 27 Fed. Cl. 52 (1992) Security State Bank, 111 T.C. 210 (1998), acq. 2001-1 C.B. xix Paul F. Belloff, 63 TCM 3150 (1992) Paul F. Belloff, 1992 RIA T.C. Memo 92,346 Boeing Company v. U.S., 91 AFTR 2d 2003-1 (USSC, 2003) Ruddick Corp. v. U.S., 81-1 USTC 9343 (Ct. Cls., 1981)
West Publishing Company West Publishing Company Government Printing Office CCH Incorporated Research Institute of America Research Institute of America CCH Incorporated
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Tax Research Corporations 1-23 EXAMPLE C:1-10 Assume the same facts as in Example C:1-9. In a later year, a case involving similar facts and issues is heard by the U.S. Court of Federal Claims. This court is not bound by precedents set by any of the other courts. Thus, it may reach a conclusion independently of the other courts.
Circuit Courts of Appeals. A circuit court is bound by U.S. Supreme Court decisions and its own earlier decisions. If neither the Supreme Court nor the circuit in question has already decided an issue, the circuit court has no precedent that it must follow, regardless of whether other circuits have ruled on the issue. In such circumstances, the circuit court is said to be writing on a clean slate. In rendering a decision, the judges of that court may adopt another circuits view, which they are likely to regard as relevant.
EXAMPLE C:1-11 Assume the same facts as in Example C:1-9. Any circuit other than the Eleventh would be writing on a clean slate if it adjudicated a case involving similar facts and issues. After reviewing the Eleventh Circuits decision, another circuit might find it relevant and rule in the same way.
In such a case of first impression, when the court has had no precedent on which to base a decision, a tax practitioner might look at past opinions of the court to see which other judicial authority the court has found to be persuasive. Forum Shopping. Not surprisingly, courts often disagree on the tax treatment of the same item. This disagreement gives rise to differing precedents within the various jurisdictions (what is called a split in judicial authority). Because taxpayers have the flexibility of choosing where to file a lawsuit, these circumstances afford them the opportunity to forum shop. Forum shopping involves choosing where among the courts to file a lawsuit based on differing precedents. An example of a split in judicial authority concerned the issue of when it became too late for the IRS to question the tax treatment of items that flowed through an S corporations return to a shareholders return. The key question was this: if the time for assessing a deficiency (limitations period) with respect to the corporations, but not the shareholders, return had expired, was the IRS precluded from collecting additional taxes from the shareholder? In Kelley,36 the Ninth Circuit Court of Appeals ruled that the IRS would be barred from collecting additional taxes from the shareholder if the limitations period for the S corporations return had expired. In Bufferd,37 Fehlhaber,38 and Green,39 three other circuit courts ruled that the IRS would be barred from collecting additional taxes from the shareholder if the limitations period for the shareholders return had expired. The Supreme Court affirmed the Bufferd decision,40 establishing that the statute of limitations for the shareholders return governed. This action brought about certainty and uniformity within the judicial system. Dictum. At times, a court may comment on an issue or a set of facts not central to the case under review. A courts remark not essential to the determination of a disputed issue, and therefore not binding authority, is called dictum. An example of dictum is found in Central Illinois Public Service Co.41 In this case, the U.S. Supreme Court addressed whether lunch reimbursements received by employees constitute wages subject to withholding. Justice Blackman remarked in passing that earnings in the form of interest, rents, and dividends are not wages. This remark is dictum because it is not essential to the determination of whether lunch reimbursements are wages subject to withholding. Although not authoritative, dictum may be cited by taxpayers to bolster an argument in favor of a particular tax result.
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36 Daniel M. Kelley v. CIR, 64 AFTR 2d 89-5025, 89-1 USTC 9360 (9th Cir., 1989). 37 Sheldon B. Bufferd v. CIR, 69 AFTR 2d 92-465, 92-1 USTC 50,031 (2nd Cir., 1992). 38 Robert Fehlhaber v. CIR, 69 AFTR 2d 92-850, 92-1 USTC 50,131 (11th Cir., 1992).
39 Charles T. Green v. CIR, 70 AFTR 2d 92-5077, 92-2 USTC 50,340 (5th Cir., 1992). 40 Sheldon B. Bufferd v. CIR, 71 AFTR 2d 93-573, 93-1 USTC 50,038 (USSC, 1993). 41 Central Illinois Public Service Co. v. CIR, 41 AFTR 2d 78-718, 78-1 USTC 9254 (USSC, 1978).
STOP & THINK Question: You have been researching whether an amount received by your new client can
be excluded from her gross income. The IRS is auditing the clients prior year tax return, which another firm prepared. In a similar case decided a few years ago, the Tax Court allowed an exclusion, but the IRS nonacquiesced in the decision. The case involved a taxpayer in the Fourth Circuit. Your client is a resident of Maine, which is in the First Circuit. Twelve years ago, in a case involving another taxpayer, the federal court for the clients district ruled that this type of receipt is not excludable. No other precedent exists. To sustain an exclusion, must your client litigate? Explain. If your client litigates, in which court of first instance should she begin her litigation? Solution: Because of its nonacquiescence, the IRS is likely to challenge your clients tax treatment. Thus, she may be compelled to litigate. She would not want to litigate in her U.S. district court because it would be bound by its earlier decision, which is unfavorable to taxpayers generally. A good place to begin would be the Tax Court because it is bound by appellate court, but not district court, decisions and because of its earlier pro-taxpayer position. No one can predict how the U.S. Court of Federal Claims would rule because no precedent that it must follow exists.
ADDITIONAL COMMENT
A tax treaty carries the same authoritative weight as a federal statute (IRC). A tax advisor should be aware of provisions in tax treaties that will affect a taxpayers worldwide tax liability.
TA X T R E AT I E S The United States has concluded tax treaties with numerous foreign countries. These treaties address the alleviation of double taxation and other matters. A tax advisor exploring the U.S. tax consequences of a U.S. corporations operations in another country should determine whether a treaty between that country and the United States exists. If one does, the tax advisor should ascertain the applicable provisions of the treaty. (See Chapter C:16 of this text for a more extensive discussion of treaties.) TA X P E R I O D I C A L S Tax periodicals assist the researcher in tracing the development of, and analyzing tax law. These periodicals are especially useful when they discuss the legislative history of a recently enacted IRC statute that has little or no administrative or judicial authority on point. Tax experts write articles on landmark court decisions, proposed regulations, new tax legislation, and other matters. Frequently, those who write articles of a highly technical nature are attorneys, accountants, or professors. Among the periodicals that provide indepth coverage of tax-related matters are the following:
The Journal of Taxation The Tax Adviser Practical Tax Strategies TaxesThe Tax Magazine Tax Law Review Tax Notes Corporate Taxation Business Entities Real Estate Taxation Estate Planning The first six journals are generalized; that is, they deal with a variety of topics. As their titles suggest, the next four are specialized; they deal with specific subjects. All these publications (other than Tax Notes, which is published weekly) are published either monthly or quarterly. Daily newsletters, such as the Daily Tax Report, published by the Bureau of National Affairs (BNA) in print and electronic formats, are used by tax professionals when they need updates more timely than can be provided by monthly or quarterly publications. Tax periodicals and tax services are secondary authorities. The IRC, Treasury Regulations, IRS pronouncements, and court opinions are primary authorities. In presenting research results, the tax advisor should always cite primary authorities.
KEY POINT
Tax articles can be used to help find answers to tax questions. Where possible, the underlying statutory, administrative, or judicial sources referenced in the tax article should be cited as authority and not the author of the article. The courts and the IRS will place little, if any, reliance on mere editorial opinion.
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TA X
OBJECTIVE
Consult tax services to research an issue
S E RV I C E S
Various publishers provide multivolume commentaries on the tax law in what are familiarly referred to as tax services. Researchers often consult tax services at the beginning of the research process because a tax service helps identify the tax authorities pertaining to a particular tax issue. The actual tax authorities (e.g., IRC, Treasury Regulations, IRS pronouncements, and court cases), and not the tax services, are generally cited as support for a particular tax position. The services are available in print form via the publishers and electronic form via the Internet. (See further discussion at The Internet as a Research Tool later in this chapter). Although each major tax service is an outstanding resource, significant differences exist in the content and organizational scheme from one publisher to the next. For example, each service has its own special features and editorial approach to tax issues along with a great deal of proprietary content. The best way to acquaint oneself with the various tax services and the advantages and disadvantages of each is to use them in researching hypothetical or actual problems. Organizationally, tax services fall into two types: annotated and topical (although this distinction has become somewhat blurred in the Internet version of these services). An annotated tax service is organized by IRC section. The IRC-arranged subdivisions of this service are likely to encompass several topics. The annotations accompany editorial commentaries and include digests or summaries of IRS pronouncements and court opinions that interpret a particular IRC section. They are classified by subtopic and cite pertinent primary authorities. A topical tax service, on the other hand, is organized by broad topic, including income taxes, estate and gift taxes, and excise taxes. The topically arranged subdivisions of this service are likely to encompass several IRC sections. Annotated tax services include the United States Tax Reporter and the Standard Federal Income Tax Reporter services, both of which are organized by IRC section. Many tax advisors find these reporters easy to use because of their extensive indexing system. Topical tax services include RIAs Federal Tax Coordinator 2d and BNAs Tax Management Portfolios. Tax Management Portfolios are popular with many tax advisors because they are very readable yet still provide a comprehensive discussion of a broad range of tax issues. Each portfolio (e.g., Passive Loss Rules, Portfolio 549) covers a particular topic in great detail. However, because the published portfolios do not cover all areas of the tax law, another service may be necessary to supplement the gaps in a portfolios coverage. Table C:1-4 summarizes the organization and key features of the major tax services.
TABLE C:1-4
Summary of Key Features of Tax Services

Name United States Tax Reporter Publisher Thomson Reuters/RIA Organization IRC section number Key Features Editorial commentary Index and findings list Annotations Editorial commentary Index and findings list Annotations Commentary organized by topic with references to primary authority and tabbed access to IRC and Treasury Regulations. Over 400 specialized booklets with extensive commentary by topic, heavily footnoted and referenced to primary authority.
Standard Federal Income Tax Reporter Federal Tax Coordinator 2d
Wolters Kluwer/CCH
IRC section number
Thomson Reuters/RIA
Tax topic (income tax by topic, estate and gift taxes, excise taxes) U.S. income, foreign income, state tax, estate and gift tax
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Tax Management Portfolios
Bureau of National Affairs (BNA)
INTERNET AS A RESEARCH TOOL

OBJECTIVE
Grasp the basics of Internet-based tax research
TH E
Internet databases are rapidly replacing print-based services as the principal source of tax related information. These databases encompass not only the IRC, Treasury Regulations, court cases, state laws, and other primary authorities, but also citators and secondary sources such as tax service reporters, treatises, journals, and newsletters. The principal advantages of using Internet-based tax services are ease and speed of access. These services eliminate the need for searching through several volumes of text, the need for consulting numerous cumulative supplements, and the time required to regularly update a print-based library. In addition, Internet based research tools put a vast amount of information in the hands of a tax practitioner without the cost and space requirements of a well equipped print-based tax library. Because of these advantages, the Internet has become the principal medium for conveying tax related information to professionals. The most widely used Internet-based research services are RIAs CheckpointTM (hereafter CHECKPOINT), accessible at http://checkpoint.riag.com, and CCH IntelliConnectTM (hereafter INTELLICONNECT), accessible at http://intelliconnect.cch.com.42 Westlaw and LexisNexus are online legal research services that are predominately used by legal professionals.43 This chapter limits its discussion to CHECKPOINT and INTELLICONNECT. Both subscription-based services are updated continuously and store information in databases, called libraries, principal among which are the following:44
CHECKPOINT INTELLICONNECT
Newsstand Federal State and Local International Estate Planning Pension and Benefits Payroll
Tax News, Journals, and Newsletters Federal Tax State Tax International Tax Financial and Estate Planning Pension/Benefits Payroll
Newsstand on CHECKPOINT and Tax News, Journals, and Newsletters on INTELLICONNECT provide daily updates on recent tax developments. The Federal library on both series contains the text of the IRC, Treasury Regulations, IRS pronouncements, court opinions, and other primary sources. In addition to primary sources, the Federal library on CHECKPOINT contains the RIA citator, Federal Tax Coordinator 2d, and United States Tax Reporter annotations and explanations. The Federal library on INTELLICONNECT contains the Standard Federal Income Tax Reporter and the Standard Federal Income Tax Reporter Explanations. Tax reporters for all 50 states as well as multistate tax guides are found in the State and Local library on CHECKPOINT and the State Tax library on INTELLICONNECT. International tax treaties are found in the International library of both services. CHECKPOINTs Estate Planning offers the text of estate tax treaties, newsletters, journals, and Warren, Gorham & Lamont tax treatises. INTELLICONNECTs Financial and Estate Planning library supplies the Federal Estate and Gift Tax Reporter, as well as the text of estate and gift tax statutes, cases, and rulings. Finally, Pension and Benefits on CHECKPOINT and Pension on INTELLICONNECT contain the text of the Employee Retirement Income Security Act (ERISA), related Treasury Regulations, and Congressional committee reports, while Payroll provides the text of state and federal employment regulations and current withholding tables.
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42 Commerce Clearing House (CCH) is a member of the Wolters Kluwer Tax, Accounting and Legal Division. During 2009, CCH completed a major revision to its online research service, transitioning from the former Tax Research Network to IntelliConnectTM (hereafter INTELLICONNECT). 43 The research products discussed in this section (e.g., CHECKPOINT, INTELLICONNECT, Westlaw, and LexisNexus) generally are available only to paid subscribers. 44 INTELLICONNECT has numerous other databases, including Accounting and Audit, Banking, Corporate Government, Energy & Natural Resources, Health Care Compliance and Reimbursement. These specialty areas generally fall outside the tax arena and therefore are not described in this chapter.
CHECKPOINT and INTELLICONNECT libraries and databases can be searched in four basic ways: By keyword By index By citation By content
EXAMPLE C:1-12 Rhonda Researchers client is a real estate developer and wants to exchange an office building for a residential condominium in the same town. The client wants to know if he can structure the transaction in a tax advantaged way. Rhonda immediately recognizes the situation as a potential like-kind exchange of real property. Therefore, she undertakes a keyword search of INTELLICONNECT using the term like kind exchange to quickly uncover potentially applicable documents. She also knows that Sec. 1031 is the relevant IRC section and can search the IRC or Treasury Regulations by citation. On the other hand, if she were unfamiliar with the topic, she could employ several other options. For example, INTELLICONNECTs Federal Tax editorial content has a heading for topic indexes. The Exchange of property term in the topical index directs Rhonda to See Like-kind Exchanges; Sales and Exchanges; and Tax-free Exchanges. The index entries under these headings direct Rhonda to a number of entries potentially applicable to the transaction. Rhonda also conducts a similar research procedure on CHECKPOINT to see whether this alternative service provides any additional information. In particular, she searches in the Federal Tax Coordinator 2d, which is RIAs topical service.
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KEY WORD SEARCHES Searching CHECKPOINT and INTELLICONNECT by keyword is relatively simple, particularly if the researcher is familiar with the Internet. The first step is to activate a database or multiple databases and refine the results after the initial query. The researcher can choose to search across any combination of the available databases. The CHECKPOINT Federal databases include primary sources such as the Internal Revenue Code, Treasury Regulations, and Federal Tax Cases along with editorial databases such as RIAs Federal Tax Coordinator 2d. Similar choices exist for INTELLICONNECT. Deciding which database to include in the search depends partly on the expected complexity of the research question and on the researchers familiarity with the topic. The search engines within the services look for the terms selected and many variations of the terms. For example, the search for auto will return documents with auto, car, automobile, motor vehicle, passenger vehicle, sedan, and others.45 Searches will include both singular and plural variations. Any document with the term or terms is returned and ranked by best match according to the search. If two terms are used, the best matches generally are documents where the terms are close together. Picking key words and search terms is critical to success. The search must be broad enough to include relevant documents but not so broad to include hundreds or thousands of documents unlikely to be on point. For example, if the researcher selects only the INTELLICONNECT Cases database, the term property exchange returns thousands of results that have both the words property and exchange somewhere in the document. Clearly this outcome is too broad for a researcher just beginning his or her research. Fortunately, several methods of narrowing the search exist. For example, the search for property exchange can be limited to all terms, any terms, near phrase, or exact phrase. Specifically, the keyword search property exchange that uses quotation marks around the search phrase will return documents only with that exact phrase. Thus, quotation marks should be used sparingly and only when the researcher knows the precise phrase. Using Boolean connectors is helpful as well. These connectors force the search engine to narrow the search based on the parameters set. Table C:1-5 provides a partial list of connectors available in CHECKPOINT and INTELLICONNECT. Another way to narrow a search is to focus on terms unique to the research question at hand. The goal is to identify tax related terms likely to appear only in relevant tax
45 Both CHECKPOINT and INTELLICONNECT provide a thesaurus tool, which can identify synonyms and suggest alternative terms related to search terms used by the researcher. The search engine automatically searches for synonyms unless the researcher restricts the search to specific terms using
Boolean connectors or quotation marks. For example, a search for the specific phrase automobile depreciation will not return documents that refer to auto, car, or vehicle.
Connectors Used in INTELLICONNECT and CHECKPOINT

INTELLICONNECT and or not w/n CHECKPOINT &, and |, or ^ /n Description Retrieves documents with both terms. Retrieves documents with either term. Retrieves documents with one term but not the other. Retrieves documents in which the first term is separated from the second term by no more than n number of words. Retrieves documents that contain the first term within 20 words of the second term (or within the same sentence for RIA). Retrieves documents that contain the first term within 80 words of the second term (or within the same paragraph for RIA). Exact phrase. Keyword variation. Examples INTELLICONNECT: property and exchange CHECKPOINT: property & exchange INTELLICONNECT: property or exchange CHECKPOINT: property | exchange INTELLICONNECT: property not exchange CHECKPOINT: property ^ exchange INTELLICONNECT: property w/5 exchange CHECKPOINT: property /5 exchange Locates property within 5 words of exchange INTELLICONNECT: property w/sen exchange CHECKPOINT: property /s exchange INTELLICONNECT: property w/par exchange CHECKPOINT: property /p exchange INTELLICONNECT and CHECKPOINT: property exchange Deprecia* returns depreciation, depreciate, depreciated, depreciating
w/sen
/s
w/par
/p
authorities. For example, stamps are a type of collectible, but the term also will appear in documents discussing taxation of distilled spirits, food stamps, and store stamps and coupons. The researcher should begin the search with limiting terms such as collectible rather than the broader term stamps. Also, researchers with a good working knowledge of the IRC quickly learn that using IRC sections in search terms is a great way to obtain relevant documents. Searching using key words is a skill that improves with practice. Researchers becoming familiar with using the databases will learn to craft search terms that include the most relevant elements of the question at hand. Once the researcher finds a document on point, the information within that document often can be used to narrow future searches. The search can be repeated by adding terms, or the documents returned originally can be searched using a new set of terms. Also, the search within results feature offered by both CHECKPOINT and INTELLICONNECT is helpful when the search returns too many documents. However, if searches by key word search do not return the desired results, other options exist.
SEARCH BY INDEX Both CHECKPOINT and INTELLICONNECT offer traditional indexes. With INTELLICONNECT, the user can click on most databases to see an index of the contents. For example, clicking on the Standard Federal Income Tax Reporter Topical Index listed in the Federal Tax Editorial content database reveals a list from A to Z, and the researcher can easily click on a hyperlink for any letter and scroll through the alphabetized topics list. As an example, one can find the letter C, then scroll through the screens and find the topic casualty losses that directs the researcher to a variety of subheadings. CHECKPOINT has an Index option under the Search area of the Research tab. In CHECKPOINT, the researcher can choose the Federal Tax Coordinator 2d Topic Index database. Again, the
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researcher will find the letter C and scroll through the topics to find casualty losses, which leads the researcher to subheadings with hyperlinks to CHECKPOINTs editorial materials. In addition, both INTELLICONNECT and CHECKPOINT have topical indexes that use hyperlinks to the Internal Revenue Code. In INTELLICONNECT, the researcher begins with the Topical Index option located under Federal Tax Primary Sources, selects the Current Internal Revenue Code Topical Index, and begins his or her research with an A to Z list. In CHECKPOINT, the researcher selects the Current Code Topic Index located in the Indexes link on the Research tab.
S E A R C H B Y C I TAT I O N Often the desired document is a specific IRC section, Treasury Regulation, court case, IRS pronouncement, or other document. If so, both services offer searches by specific citation. Researchers must be careful to use exact citations using this tool because close matches will not return the desired document. Both CHECKPOINT and INTELLICONNECT citation search tools provide dedicated boxes in which to type the specific type of document requested. For example, to search for IRC Sec. 267, the researcher simply types 267 in the box labeled Current Code in CHECKPOINT under the Find by Citation link, or IRC Code & Hist. Sec. in INTELLICONNECT under the Citation link. Specific boxes also exist for various court decisions, revenue rulings, revenue procedures, and other IRS pronouncements. SEARCH BY CONTENT Each database also can be searched by content. Clicking on the hyperlink for each database will return a table of contents. Clicking through an entry will take the researcher further into the table of contents. For example, in INTELLICONNECT, several documents discussing adoption credits can be located by clicking on the following series of hyperlinks:
Federal Tax Federal Tax Editorial Content Standard Federal Income Tax Reporter Credits Adoption expenses Sec. 23 CHECKPOINT also has a Table of Contents, located in the upper right corner of the primary research screen. Documents discussing adoption credits may be found by clicking on the following series of hyperlinks: Federal Library Federal Editorial Materials Federal Tax Coordinator 2d Chapter A Individuals and Self-Employment Tax A-4400 Adoption Expense Credit
NONCOMMERCIAL INTERNET SERVICES Many noncommercial institutions, such as governments and universities, allow access to their tax-related databases via the Internet. In tax-surfing the Internet, the researcher might first visit the IRS site located at http://www.irs.gov. Although oriented to the layman, this site contains a wealth of information useful to the tax professional. Such information includes guidelines for electronic filing, IRS forms and instructions, the full text of Treasury Regulations, and recent issues of the Internal Revenue Bulletin. Other useful sites include those maintained by the Library of Congress at http://thomas.loc.gov and the Government Printing Office at http://www.gpoaccess.gov. From these sites, the researcher can retrieve the text of recent court opinions, tax legislation, committee reports, state and federal tax laws, and much more. An excellent gateway for starting tax related research is the Tax, Accounting, and Payroll Sites Directory at http://www.taxsites.com, maintained by AccountantsWorld,
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LLC. This site provides hundreds of hyperlinks to federal, state, and international tax law and tax form databases. Instrumental in financial accounting searches is the Electronic Data Gathering, Analysis, and Retrieval (EDGAR) site at http://www. sec.gov/edgar.shtml. EDGAR is a document filing and retrieval service sponsored by the U.S. Securities and Exchange Commission (SEC). It provides access to the full text of documents filed with the SEC by publicly traded companies. These documents include annual financial statements on Form 10-K, quarterly financial statements on Form 10-Q, proxy statements, and prospectuses. The EDGAR database extends from January 1994 to the present and is accessible by company name, central index key, document file number, and keyword.
CI TAT O R S
OBJECTIVE
Use a citator to assess tax authorities
Citators serve two functions. First, they trace the judicial history of a particular case (e.g., if the case under analysis is an appeals court decision, the citator indicates the lower court that heard the case and whether the Supreme Court reviewed the case). Second, they list other authorities (e.g., cases and IRS pronouncements) that cite the case or authority in question. These listed authorities are called citing cases or citing rulings. The judicial history also indicates whether the case is affirmed, reversed or remanded.46 Because tax law relies heavily on precedent, the citator provides an index of citing cases and rulings that help the researcher determine the strength of the case or ruling he or she is evaluating. The citator gives full citations for the citing case and lists where the citing cases can be found. It is important to note that the same case may have as many as three decisions (i.e., lower court, court of appeals, and Supreme Court) with each listing having its own list of citing cases. Therefore, if a citing case cites only the Supreme Court decision, the citator will list it only under the Supreme Court cite. Two principal tax related commercial citators are those in INTELLICONNECT and CHECKPOINT. Both citators allow the researcher to enter case names or case citations. The discussion in this section focuses on the electronic version of the citators, although both CCH and RIA offer print versions as well. The INTELLICONNECT citator analyzes every decision reported in the Standard Federal Income Tax Reporter, the Excise Tax Reporter, and the Federal Estate and Gift Tax Reporter and selectively lists cases that cite the decision under analysis. INTELLICONNECT lists only the citing cases that its editors believe will influence the precedential weight of the decision under analysis. The CHECKPOINT citator also provides the history of each authority and lists the cases and pronouncements that have cited the authority. This citator, however, differs from the INTELLICONNECT citator in a couple of important ways. First, CHECKPOINT lists all citing cases, and not just those that the editors believe will serve as relevant precedent. Second, the CHECKPOINT citator provides additional information about the citing case, showing whether the citing authorities comment favorably or unfavorably on the cited case or whether they can be distinguished from the cited case.47 In addition to tax cases, the CHECKPOINT and INTELLICONNECT citators evaluate revenue rulings and other IRS pronouncements and lists any status changes. Before relying on a revenue ruling or pronouncement, a researcher must confirm that the pronouncement reflects the current position of the IRS. For example, a revoked ruling is
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46
If a case is affirmed, the decision of the lower court is upheld. Reversed means the higher court invalidated the decision of the lower court because it reached a conclusion different from that derived by the lower court. Remanded signifies that the higher court sent the case back to the lower court with instructions to address matters consistent with the higher courts ruling.
47 When a court distinguishes the facts of one case from those of an earlier case, it suggests that its departure from the earlier decision is justified because the facts of the two cases are different.
Tax Research Corporations 1-31 TABLE C:1-6
Terms to Describe Status Changes to IRS Rulings

Term Amplified Clarified Distinguished Modified Obsoleted Description of Term No change in the prior published position has occurred, but the prior position is extended to cover a variation of the fact situation previously addressed. Language used in a prior published position is being made clear because the previous language has caused or could cause confusion. The ruling mentions a prior ruling but points out an essential difference between the two rulings. The substance of a previously published ruling is being changed, but the prior ruling remains in effect. A previously published ruling is no longer determinative with respect to future transactions, e.g., because laws or regulations have changed, or the substance of the ruling has been adopted into regulations. A previously published ruling has been determined to be incorrect, and the correct position is being stated in the new ruling. The new ruling merely restates the substance of a previously published ruling or series of rulings. The ruling expands a previous ruling, e.g., by adding items to a list. The previously published ruling will not be applied pending some future action, such as the issuance of new or amended regulations.
Revoked Superseded Supplemented Suspended
Source: www.irs.gov.
one in which the ruling is no longer correct and the correct position is being stated in the new ruling. The IRS does not remove the old ruling from the Internal Revenue Bulletin or Cumulative Bulletin, but the old ruling does not have authority regarding a transaction occurring after the revocation. Thus, failure to confirm its status could result in an incorrect conclusion. Table C:1-6 provides a list of terms the IRS uses to describe changes in the status of a ruling.
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U S I N G T H E C I TAT O R Internet-based versions of the citators are easier to use than print-based citators. For example, assume the researcher is currently reading Leonarda C. Diaz v. Commissioner of Internal Revenue, 70 TC 1067 (1978). Using INTELLICONNECT, the researcher can click on the Citator button in the left column at the top left of the page, and the service opens up a new tab with a summary of activity of the case. The information in bold print with bullets to the left denotes that the Diaz case was first decided by the Tax Court (i.e., TC), and then by the Second Circuit Court of Appeals (i.e., CA-2). It shows that the Second Circuit affirmed (upheld) the Tax Courts decision. The three cases underneath the Second Circuit decision cite the Diaz decision and might be useful for the researcher to better understand the impact of the case. The seven cases listed beneath the Tax Court decision cite the Tax Courts opinion. The CHECKPOINT citator is similarly easy to use. Once again, if the researcher is reading the Diaz case, he or she simply clicks on the Citator button at the top of the case window. The two main decisions (Tax Court and Second Circuit) appear in a list. Clicking on either case brings up the court decisions that have cited the Diaz decision. CHECKPOINT sometimes lists more cases than does INTELLICONNECT. In this example, CHECKPOINT lists ten cases that have cited the Diaz Second Circuit decision and 25 cases that have cited the Tax Court decision. CHECKPOINT also adds a brief description of the type of citation cited favorably, cited unfavorable, case distinguished, or reasoning followed.
GUIDELINES F O R TA X S E RV I C E S
OBJECTIVE
PR O F E S S I O N A L
Understand professional guidelines that CPAs in tax practice should follow
Professional guidelines for tax services are contained in both government-imposed and professional-imposed tax standards. The following sections briefly describe two types of guidelinesTreasury Department Circular 230 (Rev. 4-2008) and the American Institute of Certified Public Accountants (AICPA) Statements on Standards for Tax Services (SSTSs). A fuller discussion of these standards appears in Chapter C:15.
T R E A S U RY D E PA R T M E N T C I R C U L A R 2 3 0 Circular 230 sets forth rules to practice before the Internal Revenue Service and pertains to certified public accountants, attorneys, enrolled agents, and other persons representing taxpayers before the IRS. It presents the duties and restrictions relating to such practice and prescribes sanctions and disciplinary proceedings for violating these regulations. Circular 230 rules, however, are not ethical standards. Instead, the document focuses on the right to represent clients before the IRS. These standards differ from the AICPAs SSTSs in the following ways: They apply only to federal tax issues and not state authorities. They generally apply only to federal income tax practice. They do not provide the depth of guidance found in the SSTSs. They give the government the authority to impose monetary penalties for violations of the rules. Circular 230 also provides guidelines for written advice to taxpayers. These guidelines fall into two categories: (1) covered opinions48 and (2) all other written advice.49 The rules govern written advice in opinion letters, memoranda, presentations, studies, facsimiles, e-mail, and instant messaging, but they exclude oral advice, tax return preparation, certain post-filing advice, and internal written advice. Tax advisors are often asked to give their opinion on the tax treatment of a transaction or proposed transaction. The advisors written conclusions are called reliance opinions in Circular 230 and include any written advice that concludes, at a confidence level of more likely than not, that a tax issue would be resolved in a taxpayers favor. These opinions might include many routine tax issues encountered in a standard practice. Rather than comply with the detailed due diligence burdens imposed by Circular 230, many practitioners now include a standard disclaimer for routine written advice. See the sample client letter in Appendix A for the language of such disclaimers. A I C PA S S TAT E M E N T S O N TA X S TA N D A R D S Tax advisors confronted with ethical issues frequently turn to a professional organization for guidance. Although the guidelines set forth by such organizations are not legally enforceable, they carry significant moral weight, and may be cited in a negligence lawsuit as the proper standard of care for tax practitioners. They also may provide grounds for the termination or suspension of ones professional license. One such set of guidelines is the Statements on Standards for Tax Services (SSTSs),50 issued by the American Institute of Certified Public Accountants (AICPA) and reproduced in Appendix E. The SSTSs provide an ethical framework to govern the normative relationship between a tax advisor and his or her client, where, unlike an auditor, a tax advisor acts as the clients advocate. Thus, his or her primary duty is to the client, not the IRS. In
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Covered opinions include tax shelters, reportable transactions, marketed opinions as well as reliance opinions. 49 Circular 230 Section 10.35 applies to covered opinions and Section 10.37 applies to all other written advice.
48
50
AICPA, Statements on Standards for Tax Services, 2009, effective January 1, 2010.
fulfilling this duty, the advisor is bound by the highest standards of care. The most recent version of the SSTSs includes seven standards that provide guidance for AICPA members in their professional tax practice. SSTS No. 1Tax Return Positions. Tax professionals often provide tax advice in situations where the authority is unclear or evolving. Frequently this advice involves recommending positions that could be reversed upon audit. This statement describes the minimum level of confidence a CPA must achieve to recommend a tax return position to a taxpayer. Members first must determine and comply with all standards imposed by the various taxing authorities. Regardless of those standards, a member should not recommend a position unless he or she has a good faith belief that the position has a realistic possibility of being sustained administratively or judicially on its merits if challenged. Members are not permitted to take the probability of audit into account. If the position does not meet the realistic probability standard, a member still may recommend a tax return position if he or she concludes that the position has a reasonable basis and the position is properly disclosed. When recommending a tax return position and when preparing or signing a return on which a tax return position is taken, a member should, when relevant, advise the taxpayer regarding potential penalty consequences of such tax return position and the opportunity, if any, to avoid such penalties through disclosure. The standard highlights the dual responsibility of the member. The U.S. tax system can function only when taxpayers file true, correct, and complete returns, but taxpayers also have no obligation to pay more in tax than they legally owe. The tax professionals duty is to meet his or her responsibilities to both the tax system and the taxpayer client. SSTS No. 2Answers to Questions on Returns. Return preparers often must sign a declaration that the return is true, correct, and complete. A member should make a reasonable effort to obtain from the taxpayer the information necessary to provide appropriate answers to all questions on a tax return before signing as preparer. However, in certain circumstances, questions or information applicable to the taxpayer may be omitted. Reasonable grounds include the following situtations: The omitted information is not readily available or is immaterial and has little effect on taxable income or loss or the tax liability. The meaning of the question as it relates to the taxpayer is uncertain. The requested information is voluminous, in which case the taxpayer can attach a statement indicating that the requested information will be supplied upon request. SSTS No. 3Certain Procedural Aspects of Preparing Returns. Tax returns are based on information provided by the client. This statement sets forth the applicable standards for members concerning this information. Specifically, in preparing or signing a return, members are not required to examine or verify a clients supporting data. A member may rely on information supplied by the taxpayer unless the information appears to be incorrect, incomplete, inconsistent, or unreasonable under the circumstances. However, if the applicable law or regulations impose a specific record keeping requirement to claim a deduction, the member should inquire and satisfy himself or herself that the required records do exist. Members are specifically encouraged to make use of a taxpayers returns for one or more prior years in preparing the current return, whenever feasible. The practice should help avoid the omission or duplication of items and provide a basis for the treatment of similar or related transactions. SSTS No. 4Use of Estimates. For various reasons, precise information about an amount required on a tax return might not be available at the time the tax return is prepared. For
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example, the taxpayer might not have a record of small transactions or might be missing certain records. In such cases, a member may advise on estimates used in the preparation of the tax return, but the taxpayer has the responsibility to provide the estimated data. Appraisals and valuations are not considered estimates. If estimates are used, they generally need not be labeled as estimates, but they should not be presented in a manner that provides a misleading impression about the degree of factual accuracy. However, disclosure that estimates were used should be made in some unusual situations, including: A taxpayer has died or is ill at the time the return is prepared. A taxpayer has not received a schedule K-1 at the time the tax return is to be filed. Litigation is pending that affects the return. Fire, computer failure, or a natural disaster has destroyed the relevant records. Notwithstanding this statement, the tax practitioner may not use estimates when such use is implicitly prohibited by the IRC. For example, Sec. 274(d) disallows deductions for certain expenses (e.g., meals and entertainment) unless the taxpayer can substantiate the expenses with adequate records or sufficient corroborating information. The documentation requirement effectively precludes the taxpayer from estimating such expenses and the practitioner from using such estimates. SSTS No. 5Departure from a Position Previously Concluded in an Administrative Proceeding or Court Decisions. Members can take positions that differ from a position determined in an administrative proceeding with respect to the taxpayers prior return (such as an IRS audit, IRS appeals conference, or a court decision.) Departure might be warranted because of a change in the law or regulations, or favorable court decisions. In any event, if the member can otherwise meet the standards of SSTS No. 1, departure from previous positions is permissible. SSTS No. 6Knowledge of Error: Return Preparation and Administrative Proceedings. For purposes of this standard, the definition of an error has the common meaning, including a mathematical error, but the definition also encompasses any position that does not meet the standards of SSTS No. 1. A position also qualifies as an error if it met the standard when a return was originally filed but no longer does because of a retroactive legislative or legal proceeding. An error for this purpose does not include immaterial items. A member should inform the taxpayer promptly upon becoming aware of (1) an error in a previously filed return, (2) an error in a return that is the subject of an administrative proceeding (e.g., an IRS audit or appeals conference), or (3) a taxpayers failure to file a required return. A member should advise the taxpayer of the potential consequences of the error and recommend corrective measures to be taken. This advice can be given orally. The member is not obligated to inform the taxing authority of an error and, in fact, may not do so without the taxpayers permission except when required by law. However, if the taxpayer requests that a member prepare the current years return and the taxpayer has not taken appropriate action to correct an error in a prior years return, the member should consider whether to withdraw from preparing the return and whether to continue a professional or employment relationship with the taxpayer. The standard recognizes that conflicts can arise between the members interests and those of the client. For example, withdrawal from an engagement could have an adverse impact on the taxpayer. In some situations, the member should consult his or her own legal counsel before deciding on recommendations to the taxpayer and whether to continue the engagement. In situations involving potential fraud or criminal charges, the member should advise the client to consult with an attorney before taking any action. SSTS No. 7Form and Content of Advice to Taxpayers. A member should use professional judgment to ensure that tax advice provided to a taxpayer reflects competence and
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appropriately serves the taxpayers needs. The advice can be communicated in writing or orally. When communicating tax advice to a taxpayer in writing, a member should comply with relevant taxing authorities standards applicable to written tax advice. A member should use professional judgment about any need to document oral advice. In deciding on the form of advice provided to a taxpayer, a member should consider factors such as: The importance of the transaction and the amounts involved The technical complexity involved The existence of authorities and precedents The tax sophistication of the taxpayer The need to seek other professional advice The potential penalty consequences of a tax return position and whether any penalties can be avoided through disclosure This statement implies that practitioner-taxpayer dealings should not be casual, nonconsensual, or open ended. Rather, they should be professional, contractual, and definite. Oral advice may be appropriate in routine matters, but written communications are recommended in important, complicated, or significant dollar value transactions. In addition to these obligations, the tax advisor has a strict duty of confidentiality to the client. Although not encompassed under the SSTSs, this duty is implied in the accountant client privilege. (For a discussion of this privilege, see Chapter C:15.)
STOP & THINK Question: As described in the Stop & Think box on pages C:1-10 and C:1-11, you are
researching the manner in which a deduction is calculated. The IRC states that the calculation is to be made in a manner prescribed by the Secretary. After studying the IRC, Treasury Regulations, and committee reports, you conclude that another way of doing the calculation is arguably correct under an intuitive approach. This approach would result in a lower tax liability for the client. According to the Statements on Standards for Tax Services, may you take a position contrary to final Treasury Regulations based on the argument that the regulations are not valid? Solution: You should not take a position contrary to the Treasury Regulations unless you have a good-faith belief that the position has a realistic possibility of being sustained administratively or judicially on its merits. However, you can take a position that does not meet the above standard, provided you adequately disclose the position, and the position has a reasonable basis. Whether or not you have met the standard depends on all the facts and circumstances. Chapter C:15 discusses tax return preparer positions contrary to Treasury Regulations.
WH AT
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W O U L D Y O U D O I N T H I S S I T U AT I O N ?
ing Macons return, you notice that Macon has reported sales proceeds of $1.5 million from the sale of equipment to Regal on February 22. One of the two figures must be incorrect. How do you proceed to correct it? Hint: See SSTS No. 3 in Appendix E.
Regal Enterprises and Macon Industries, unaffiliated corporations, have hired you to prepare their respective income tax returns. In preparing Regals return, you notice that Regal has claimed a depreciation deduction for equipment purchased from Macon on February 22 at a cost of $2 million. In prepar-
W O R K PA P E R S AND CLIENT LETTER

OBJECTIVE
SA M P L E
Prepare work papers and communicate to clients
Appendix A presents a set of sample work papers, including a draft of a client letter and a memo to the file. The work papers indicate the issues to be researched, the authorities addressing the issues, and the researchers conclusions concerning the appropriate tax treatment, with rationale therefor. The format and other details of work papers differ from firm to firm. The sample in this text offers general guidance concerning the content of work papers. In practice, work papers may include less detail.
PR O B L E M
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M A T E R I A L S
DISCUSSION QUESTIONS
Explain the difference between closed-fact and open-fact situations. According to the AICPAs Statements on Standards for Tax Services, what duties does the tax practitioner owe the client? Explain what is encompassed by the term tax law as used by tax advisors. The U.S. Government Printing Office publishes both hearings on proposed legislation and committee reports. Distinguish between the two. Explain how committee reports can be used in tax research. What do they indicate? A friend notices that you are reading the Internal Revenue Code of 1986. Your friend inquires why you are consulting a 1986 publication, especially when tax laws change so frequently. What is your response? Does Title 26 contain statutory provisions dealing only with income taxation? Explain. Refer to IRC Sec. 301. a. Which subsection discusses the general rule for the tax treatment of a property distribution? b. Where should one look for exceptions to the general rule? c. What type of Treasury Regulations would relate to subsection (e)? b. As a practical matter, what consequences are likely to ensue if a taxpayer does not follow a revenue ruling and the IRS audits his or her return?
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a. In which courts may litigation dealing with tax matters begin? b. Discuss the factors that might be considered in deciding where to litigate. c. Describe the appeals process in tax litigation. May a taxpayer appeal a case litigated under the Small Cases Procedure of the Tax Court? Explain whether the following decisions are of the same precedential value: (1) Tax Court regular decisions, (2) Tax Court memo decisions, (3) decisions under the Small Cases Procedures of the Tax Court. Does the IRS acquiesce in decisions of U.S. district courts? The decisions of which courts are reported in the AFTR? In the USTC? Why do some revenue ruling citations refer to the Internal Revenue Bulletin (I.R.B.) and others to a Cumulative Bulletin (C.B.)? application.
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C:1-20 Explain the Golsen Rule. Give an example of its C:1-21
Why should tax researchers note the date on which a Treasury Regulation was adopted? C:1-10 a. Distinguish between proposed, temporary, and final Treasury Regulations. b. Distinguish between interpretative and legislative Treasury Regulations.
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Assume that the only precedents relating to a particular issue are as follows: Tax Courtdecided for the taxpayer Eighth Circuit Court of Appealsdecided for the taxpayer (affirming the Tax Court) U.S. District Court for Eastern Louisiana decided for the taxpayer Fifth Circuit Court of Appealsdecided for the government (reversing the U.S. District Court of Eastern Louisiana) a. Discuss the precedential value of the foregoing decisions for your client, who is a California resident.
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Which type of regulation is more difficult for a taxpayer to successfully challenge, and why? C:1-12 Explain the legislative reenactment doctrine.
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a. Discuss the authoritative weight of revenue rulings.
Tax Research
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b. If your client, a Texas resident, litigates in the Tax Court, how will the court rule? Explain.
C:1-22 Which official publication(s) contain(s) the fol-
lowing: a. Transcripts of Senate floor debates b. IRS announcements c. Tax Court regular opinions d. Treasury decisions e. U.S. district court opinions f. Technical advice memoranda
C:1-23 Under what circumstances might a tax advisor
find the provisions of a tax treaty useful?

C:1-24 What two functions does a citator serve? C:1-25 Describe two ways that the information avail-
checkpoint.riag.com. Then answer the following questions: a. What are the principal primary sources found in both Internet tax services? b. What are the principal secondary sources found in each Internet tax service? C:1-28 Compare the features of the computerized tax services with those of Internet sites maintained by noncommercial institutions. What are the relative advantages and disadvantages of each? Could the latter sites serve as a substitute for a commercial tax service? C:1-29 According to the Statements on Standards for Tax Services, what belief should a CPA have before taking a pro-taxpayer position on a tax return?
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able from the CHECKPOINT citator differs from that available from the INTELLICONNECT citator.
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List an advisors duties that are excluded under the AICPAs Statements on Standards for Tax Services. under Treasury Department Circular 230.
List four methods of searching the CHECKPOINT and INTELLICONNECT databases. Access INTELLICONNECT at http://intelliconnect .cch.com and RIA CHECKPOINT at http://
C:1-31 List the two classifications of written advice C:1-32 Explain how Treasury Department Circular 230
differs from the AICPAs Statements on Standards for Tax Services.
PROBLEMS
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Interpreting the IRC. Under a divorce agreement executed in the current year, an ex-wife receives from her former husband cash of $25,000 per year for eight years. The agreement does not explicitly state that the payments are excludable from gross income. a. Does the ex-wife have gross income? If so, how much? b. Is the former husband entitled to a deduction? If so, is it for or from AGI? Refer only to the IRC in answering this question. Start with Sec. 71. Interpreting the IRC. Refer to Sec. 385 and answer the questions below. a. Whenever Treasury Regulations are issued under this section, what type are they likely to be: legislative or interpretative? Explain. b. Assume Treasury Regulations under Sec. 385 have been finalized. Will they be relevant to estate tax matters? Explain. Using IRS Rulings. Locate PLR 8733007 and Rev. Rul. 81-219. a. Briefly summarize the tax issue and conclusion of each ruling. b. Under what circumstances can a researcher rely on the private letter ruling? c. Under what circumstances can a researcher rely on the revenue ruling? Using Treasury pronouncements. Which IRC section(s) does Rev. Rul. 2001-29 interpret? (Hint: consult the official pronouncement of the IRS.) Using CHECKPOINT for a Keyword Search. The objective is to locate a general overview of available home office deductions. On the main research tab, select the United States Tax ReporterExplanations (RIA) library. How many results does CHECKPOINT return for each search term? a. Search term: home office deduction. b. Search term: home office deduction. c. Search term: home office /5 deduction. d. Perform the search in Part a above. Select Sort by Relevance. How does this sort change the results? Does the sort make it easier to locate relevant documents? Using INTELLICONNECT for a Keyword Search. The search objective is to determine the amount generally excludable on the sale of a married couples home. Using Browse, locate the Standard Federal Income Tax ReporterExplanations library. How many results does INTELLICONNECT return for each search term? a. Search term: home sale gain exclusion. b. Search term: home sale gain exclusion.
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1-38 Corporations
Chapter 1
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c. Does limiting the results to only those documents containing the specific term home sale improve your results? d. How do most tax documents refer to a persons home? Determining Acquiescence. a. What official action (acquiescence or nonacquiescence) did the IRS Commissioner take regarding the 1986 Tax Court decision in John McIntosh? (Hint: Consult Actions on Decisions.) b. Did this action concern all issues in the case? If not, explain. (Before answering this question, consult the headnote to the court opinion.) Determining Acquiescence. a. What original action (acquiescence or nonacquiescence) did the IRS Commissioner take regarding the 1952 Tax Court decision in Streckfus Steamers, Inc.? (Hint: Consult Actions on Decisions.) b. Was the action complete or partial? c. Did the IRS Commissioner subsequently change his mind? If so, when? Determining Acquiescence. a. What original action (acquiescence or nonacquiescence) did the IRS Commissioner take regarding the 1956 Tax Court decision in Pittsburgh Milk Co.? (Hint: Consult Actions on Decisions.) b. Did the IRS Commissioner subsequently change his mind? If so, when? Evaluating a Case. Look up James E. Threlkeld, 87 T.C. 1294 (1988) and answer the questions below. a. Was the case reviewed by the court? If so, was the decision unanimous? Explain. b. Was the decision entered under Rule 155? c. Consult a citator. Was the case reviewed by an appellate court? If so, which one? Evaluating a Case. Look up Bush Brothers & Co., 73 T.C. 424 (1979) and answer the questions below. a. Was the case reviewed by the court? If so, was the decision unanimous? Explain. b. Was the decision entered under Rule 155? c. Consult a citator. Was the case reviewed by an appellate court? If so, which one? Writing Citations. Provide the proper citations (including both primary and secondary citations where applicable) for the authorities listed below. (For secondary citations, reference both the AFTR and USTC.) a. National Cash Register Co., a 6th Circuit Court decision b. Thomas M. Dragoun v. CIR, a Tax Court memo decision c. John M. Grabinski v. U.S., a U.S. district court decision d. John M. Grabinski v. U.S., an Eighth Circuit Court decision e. Rebekah Harkness, a 1972 Court of Claims decision f. Hillsboro National Bank v. CIR, a Supreme Court decision g. Rev. Rul. 78-129 Writing Citations. Provide the proper citations (including both primary and secondary citations where applicable) for the authorities listed below. (For secondary citations, reference both the AFTR and USTC.) a. Rev. Rul. 99-7 b. Frank H. Sullivan, a Board of Tax Appeals decision c. Tate & Lyle, Inc., a 1994 Tax Court decision d. Ralph L. Rogers v. U.S., a U.S. district court decision e. Norman Rodman v. CIR, a Second Circuit Court decision Interpreting Citations. Indicate which courts decided the cases cited below. Also indicate on which pages and in which publications the authority is reported. a. Lloyd M. Shumaker v. CIR, 648 F.2d 1198, 48 AFTR 2d 81-5353 (9th Cir., 1981) b. Xerox Corp. v. U.S., 14 Cl. Ct. 455, 88-1 USTC 9231 (1988) c. Real Estate Land Title & Trust Co. v. U.S., 309 U.S. 13, 23 AFTR 816 (USSC, 1940) d. J. B. Morris v. U.S., 441 F. Supp. 76, 41 AFTR 2d 78-335 (DC TX, 1977) e. Rev. Rul. 83-3, 1983-1 C.B. 72 f. Malone & Hyde, Inc. v. U.S., 568 F.2d 474, 78-1 USTC 9199 (6th Cir., 1978) Using a Tax Service. Use the topical index of the United States Tax Reporter to locate authorities dealing with the deductibility of the cost of a facelift. a. In which paragraph(s) does the United States Tax Reporter summarize and cite these authorities? b. List the authorities. c. May a taxpayer deduct the cost of a facelift paid in the current year? Explain.
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Using a Tax Service. Locate Reg. Sec. 1.302-1 using either CHECKPOINT or INTELLICONNECT. Does this Treasury Regulation reflect recent amendments to the IRC? Explain. Using a Tax Service. Using the topical index of the Standard Federal Income Tax Reporter in INTELLICONNECT, locate authorities addressing whether termite damage constitutes a casualty loss. a. In which paragraph(s) does the Standard Federal Income Tax Reporter summarize and cite these authorities? b. List the authorities. Using a Tax Service. a. Using the Standard Federal Income Tax Reporter in INTELLICONNECT, locate where Sec. 303(b)(2)(A) appears. This provision states that Sec. 303(a) applies only if the stock in question meets a certain percentage test. What is the applicable percentage? b. Locate Reg. Sec. 1.303-2(a) in the same service. Does this Treasury Regulation reflect recent amendments to the IRC with respect to the percentage test addressed in Part a? Explain. Using a Tax Service. Using the BNA tax service, identify the number of the BNA portfolio for the following subjects. a. Innocent spouse relief. b. Accounting methods. c. Involuntary conversions. d. IRAs. e. Deductibility of legal and accounting fees, bribes, and illegal payments. Using a Tax Service. This problem deals with CHECKPOINTs Federal Tax Coordinator 2d. Use the topical index CHECKPOINT to locate authorities dealing with the deductibility of the cost of work clothing by ministers (clergymen). List the authorities. Using a Citator. Trace Biltmore Homes, Inc., a 1960 Tax Court memo decision, in both the INTELLICONNECT and CHECKPOINT citators. a. According to the CHECKPOINT citator, how many times has the Tax Court decision been cited by other courts on Headnote Number 5? b. How many issues did the lower court address in its opinion? (Hint: Refer to the case headnote numbers.) c. Did an appellate court review the case? If so, which one? d. According to the INTELLICONNECT citator, how many times has the Tax Court decision been cited by other courts? e. According to the INTELLICONNECT citator, how many times has the circuit court decision been cited by other courts on Headnote Number 5? Using a Citator. Trace Stephen Bolaris, 776 F.2d 1428, in both the INTELLICONNECT and CHECKPOINT citators. a. According to the CHECKPOINT citator, how many times has the Ninth Circuits decision been cited? b. Did the decision address more than one issue? Explain. c. Was the decision ever cited unfavorably? Explain. d. According to the INTELLICONNECT citator, how many times has the Ninth Circuits decision been cited? e. According to the INTELLICONNECT citator, how many times has the Tax Courts decision been cited on Headnote Number 1? Interpreting a Case. Refer to the Holden Fuel Oil Company case (31 TCM 184). a. In which year was the case decided? b. What controversy was litigated? c. Who won the case? d. Was the decision reviewed at the lower court level? e. Was the decision appealed? f. Has the decision been cited in other cases? Internet Research. Access the IRS Internet site at http://www.irs.gov and answer the following questions: a. How does one file a tax return electronically? b. How can the taxpayer transmit funds electronically? c. What are the advantages of electronic filing?
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Chapter 1
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Internet Research. Access the IRS Internet site at http://www.irs.gov and indicate the titles of the following IRS forms: a. Form 4506 b. Form 973 c. Form 8725 Internet Research. Access the Federation of Tax Administrators Internet site at http://www.taxadmin.org/fta/link/forms.html and indicate the titles of the following state tax forms and publications: a. Minnesota Form M-100 b. Illinois Individual Schedule CR c. New York State Corporate Form CT-3-C Internet Research. Access the Urban Institute and Brookings Institution Tax Policy Center at http://taxpolicycenter.org. On the home page, search for state individual income tax rates and locate the Tax Policy Centers latest summary of each states rates. Researchers also can locate the file by looking under the State tab, Main Features of State Tax Systems. a. How many states do not have a state individual income tax? b. How many states tax only interest and dividends for individuals? c. What is the top marginal individual income tax rate in Oregon? d. Of those that do impose an income tax, which states top marginal rate is lowest?
COMPREHENSIVE PROBLEM
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Your client, a physician, recently purchased a yacht on which he flies a pennant with a medical emblem on it. He recently informed you that he purchased the yacht and flies the pennant to advertise his occupation and thus attract new patients. He has asked you if he may deduct as ordinary and necessary business expenses the costs of insuring and maintaining the yacht. In search of an answer, consult either INTELLICONNECTs Standard Federal Income Tax Reporter or CHECKPOINTs United States Tax Reporter. Explain the steps taken to find your answer.
TAX STRATEGY PROBLEM

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Your client, Home Products Universal (HPU), distributes home improvement products to independent retailers throughout the country. Its management wants to explore the possibility of opening its own home improvement centers. Accordingly, it commissions a consulting firm to conduct a feasibility study, which ultimately persuades HPU to expand into retail sales. The consulting firm bills HPU $150,000, which HPU deducts on its current year tax return. The IRS disputes the deduction, contending that, because the cost relates to entering a new business, it should be capitalized. HPUs management, on the other hand, firmly believes that, because the cost relates to expanding HPUs existing business, it should be deducted. In contemplating legal action against the IRS, HPUs management considers the state of judicial precedent: The federal court for HPUs district has ruled that the cost of expanding from distribution into retail sales should be capitalized. The appellate court for HPUs circuit has stated in dictum that, although in some circumstances switching from product distribution to product sales entails entering a new trade or business, improving customer access to ones existing products generally does not. The Federal Circuit Court has ruled that wholesale distribution and retail sales, even of the same product, constitute distinct businesses. In a case involving a taxpayer from another circuit, the Tax Court has ruled that such costs invariably should be capitalized. HPUs Chief Financial Officer approaches you with the question, In which judicial forum should HPU file a lawsuit against the IRS: (1) U.S. district court, (2) the Tax Court, or (3) the U.S. Court of Federal Claims? What do you tell her?
CASE STUDY PROBLEM

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A client, Mal Manley, fills out his client questionnaire for the previous year and on it provides information for the preparation of his individual income tax return. The IRS has never audited Mals returns. Mal reports that he made over 100 relatively small cash contributions totaling $24,785 to charitable organizations. In the last few years, Mals charitable contributions have averaged about $15,000 per year. For the previous
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year, Mals adjusted gross income was roughly $350,000, about a 10% increase from the year before. Required: Applying Statements on Standards for Tax Services No. 3, determine whether you can accept at face value Mals information concerning his charitable contributions. Now assume that the IRS recently audited Mals tax return for two years ago and denied 75% of that years charitable contribution deduction because the deduction was not substantiated. Assume also that Mal indicates that, in the previous year, he contributed $25,000 (instead of $24,785). How do these changes of fact affect your earlier decision?
TAX RESEARCH PROBLEMS

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The purpose of this problem is to enhance your skills in interpreting the authorities that you locate in your research. In answering the questions that follow, refer only to Thomas A. Curtis, M.D., Inc., 1994 RIA TC Memo 94,015. a. What was the principal controversy litigated in this case? b. Which partythe taxpayer or the IRSwon? c. Why is the corporation instead of Dr. and/or Ms. Curtis listed as the plaintiff? d. What is the relationship between Ellen Barnert Curtis and Dr. Thomas A. Curtis? e. Approximately how many hours a week did Ms. Curtis work, and what were her credentials? f. For the fiscal year ending in 1989, what salary did the corporation pay Ms. Curtis? What amount did the court decide was reasonable? g. What dividends did the corporation pay for its fiscal years ending in 1988 and 1989? h. To which circuit would this decision be appealable? i. According to Curtis, what five factors did the Ninth Circuit mention in Elliotts, Inc. as relevant in determining reasonable compensation? Josh contributes $5,000 toward the support of his widowed mother, aged 69, a U.S. citizen and resident. She earns gross income of $2,000 and spends it all for her own support. In addition, Medicare pays $3,200 of her medical expenses. She does not receive financial support from sources other than those described above. Must the Medicare payments be included in the support that Joshs mother is deemed to provide for herself? Prepare work papers and a client letter (to Josh) dealing with the issue. Amy owns a vacation cottage in Maine. She predicts that the time during which the cottage will be used in the current year is as follows: By Amy, solely for vacation By Amy, making repairs ten hours per day and vacationing the rest of the day By her sister, who paid fair rental value By her cousin, who paid fair rental value By her friend, who paid a token amount of rent By three families from the Northeast, who paid fair rental value for 40 days each Not used 12 days 2 days 8 days 4 days 2 days 120 days 217 days
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Calculate the ratio for allocating the following expenses to the rental income expected to be received from the cottage: interest, taxes, repairs, insurance, and depreciation. The ratio will be used to determine the amount of expenses that are deductible and, thus, Amys taxable income for the year. For the tax manager to whom you report, prepare work papers in which you discuss the calculation method. Also, draft a memo to the file dealing with the results of your research.
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Look up Summit Publishing Company, 1990 PH T.C. Memo 90,288, 59 TCM 833, and J.B.S. Enterprises, 1991 PH T.C. Memo 91,254, 61 TCM 2829, and answer the following questions: a. What was the principal issue in these cases? b. What factors did the Tax Court consider in resolving the central issue? c. How are the facts of these cases similar? How are they dissimilar? Your supervisor would like to set up a single Sec. 401(k) plan exclusively for the managers of your organization. Concerned that this arrangement might not meet the requirements
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for a qualified plan, he has asked you to request a determination letter from the IRS. In a brief memorandum, address the following issues: a. What IRS pronouncements govern requests for determination letters? b. What IRS forms must be filed with the request? c. What information must be provided in the request? d. What actions must accompany the filing? e. Where must the request be filed?
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C H A P T E R
C O R P O R AT E F O R M AT I O N S A N D C A P I TA L STRUCTURE
LEARNING OBJECTIVES
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Explain the tax advantages and disadvantages of alternative business forms Apply the check-the-box regulations to partnerships, corporations, and trusts Determine the legal requirements for forming a corporation Explain the requirements for deferring gain or loss upon incorporation Understand the tax implications of alternative capital structures Determine the tax consequences of worthless stock or debt obligations
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CHAPTER OUTLINE
Organization Forms Available...2-2 Check-the-Box Regulations...2-8 Legal Requirements for Forming a Corporation...2-9 Tax Considerations in Forming a Corporation...2-9 Section 351: Deferring Gain or Loss Upon Incorporation...2-12 Choice of Capital Structure...2-27 Worthlessness of Stock or Debt Obligations...2-32 Tax Planning Considerations...2-34 Compliance and Procedural Considerations...2-36
When starting a business, entrepreneurs must decide whether to organize it as a sole proprietorship, partnership, corporation, limited liability company, or limited liability partnership. This chapter discusses the advantages and disadvantages of each form of business association. Because many entrepreneurs find organizing their business as a corporation advantageous, the chapter looks at the definition of a corporation for federal income tax purposes. It also discusses the tax consequences of incorporating a business. The chapter closes by examining the tax implications of capitalizing a corporation with equity and/or debt and describing the advantages and disadvantages of alternative capital structures. This textbook takes a life-cycle approach to corporate taxation. The corporate life cycle starts with corporate formation, discussed in this chapter. Once formed and operating, the corporation generates taxable income (or loss), incurs federal income tax and other liabilities, and makes distributions to its shareholders. Finally, at some point, the corporation might outlive its usefulness and be liquidated and dissolved. The corporate life cycle is too complex to discuss in one chapter. Therefore, additional coverage follows in Chapters C:3 through C:8.
AVA I L A B L E
OBJECTIVE
OR G A N I Z AT I O N
Sole proprietorships Partnerships Corporations Limited liability companies Limited liability partnerships
FORMS
Businesses can be organized in several forms including
Explain the tax advantages and disadvantages of alternative business forms
A discussion of the tax implications of each form is presented below.

ADDITIONAL COMMENT
The income/loss of a sole proprietorship reported on Schedule C carries to page 1 of Form 1040 and is included in the computation of the individuals taxable income. Net income, if any, also carries to Schedule SE of Form 1040 for computation of the sole proprietors self-employment tax.
SOLE PROPRIETORSHIPS A sole proprietorship is an unincorporated business owned by one individual. It often is selected by entrepreneurs who are beginning a new business with a modest amount of capital. From a tax and legal perspective, a sole proprietorship is not a separate entity. Rather, it is a legal extension of its individual owner. Thus, the individual owns all the business assets and reports income or loss from the sole proprietorship directly on his or her individual tax return. Specifically, the individual owner (proprietor) reports all the businesss income and expenses for the year on Schedule C (Profit or Loss from Business) or Schedule C-EZ (Net Profit from Business) of Form 1040. A completed Schedule C is included in Appendix B, where a common set of facts (with minor modifications) illustrates the similarities and differences in sole proprietorship, C corporation, partnership, and S corporation tax reporting. If the business is profitable, the profit is added to the proprietors other income.
John, a single taxpayer, starts a new computer store, which he operates as a sole proprietorship. John reports a $15,000 profit from the store in its first year of operation. Assuming his marginal tax rate is 35%, Johns tax on the $15,000 of profit from the store is $5,250 (0.35 $15,000).1
EXAMPLE C:2-1
If the business is unprofitable, the loss reduces the proprietors total taxable income, thereby generating tax savings.
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EXAMPLE C:2-2
Assume the same facts as in Example C:2-1 except John reports a $15,000 loss instead of a $15,000 profit in the first year of operation. Assuming he still is taxed at a 35% marginal tax rate, the $15,000 loss produces tax savings of $5,250 (0.35 $15,000).
1 The $15,000 Schedule C profit in Example C:2-1 will increase adjusted gross income (AGI). The AGI level affects certain deduction calculations (e.g., medical,
charitable contributions, and miscellaneous itemized) and, because of limitations, may result in a taxable income increase different from the $15,000 AGI increase.
Corporate Formations and Capital Structure Corporations 2-3

ADDITIONAL COMMENT
Although this chapter emphasizes the tax consequences of selecting the entity in which a business will be conducted, other issues also are important in making such a decision. For example, the amount of legal liability assumed by an owner is important and can vary substantially among the different business entities.
TAX ADVANTAGES. The tax advantages of conducting business as a sole proprietorship are as follows: The sole proprietorship is not subject to taxation as a separate entity. Rather, the sole proprietor, as an individual, is taxed at his or her marginal rate on income earned by the business. The proprietors marginal tax rate may be lower than the marginal tax rate that would have applied had the business been organized as a corporation. The owner may contribute cash to, or withdraw profits from, the business without tax consequences. Although the owner usually maintains separate books, records, and bank accounts for the business, the money in these accounts belongs to the owner personally. The owner may contribute property to, or withdraw property from, the business without recognizing gain or loss. Business losses may offset nonbusiness income, such as interest, dividends, and any salary earned by the sole proprietor or his or her spouse, subject to the passive activity loss rules. TAX DISADVANTAGES. The tax disadvantages of conducting business as a sole proprietorship are as follows: The profits of a sole proprietorship are currently taxed to the individual owner, whether or not the profits are retained in the business or withdrawn for personal use. By contrast, the profits of a corporation are taxed to its shareholders only if and when the corporation distributes the earnings as dividends. At times, corporate tax rates have been lower than individual tax rates. In such times, businesses conducted as sole proprietorships have been taxed more heavily than businesses organized as corporations. A sole proprietor must pay the full amount of Social Security taxes because he or she is not considered to be an employee of the business. By contrast, shareholder-employees must pay only half their Social Security taxes; the corporate employer pays the other half. (The employer, however, might pass this half onto employees in the form of lower wages.) Sole proprietorships may not deduct compensation paid to owner-employees. By contrast, corporations may deduct compensation paid to shareholder-employees. Certain tax-exempt benefits (e.g., premiums for group term life insurance) available to shareholder-employees are not available to owner-employees.2 A sole proprietor must use the same accounting period for business and personal purposes. Thus, he or she cannot defer income by choosing a business fiscal year that differs from the individuals calendar year. By contrast, a corporation may choose a fiscal year that differs from the shareholders calendar years.
REAL-WORLD EXAMPLE
The IRS estimates the following business entity returns to be filed for 2010: Entity Partnership C corporation S corporation
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Number 3.3 million 2.0 million 4.6 million
PA R T N E R S H I P S A partnership is an unincorporated business carried on by two or more individuals or entities for profit. The partnership form often is used by friends or relatives who engage in a business and by groups of investors who want to share the profits, losses, and expenses of an investment such as a real estate project. A partnership is a tax reporting, but not taxpaying, entity. The partnership acts as a conduit for its owners. Its income, expenses, losses, credits, and other tax-related items pass through to the partners who report these items on their separate tax returns. Each year a partnership must file a tax return (Form 1065U.S. Partnership Return of Income) to report the results of its operations. When the partnership return is filed, the preparer must send each partner a statement (Schedule K-1, Form 1065) that reports the
Section 162(l ) permits self-employed individuals to deduct as a trade or business expense all of the health insurance costs incurred on behalf of themselves, their spouses, and their dependents.
partners allocable share of partnership income, expenses, losses, credits, and other taxrelated items. The partner then must report these items on his or her separate tax return. As with a sole proprietorship, the partners allocable share of business profits is added to the partners other income and taxed at that partners marginal tax rate. A completed Form 1065 appears in Appendix B.
EXAMPLE C:2-3 Bob, a single taxpayer, owns a 50% interest in the BT Partnership, a calendar year entity. The BT Partnership reports a $30,000 profit in its first year of operation. Bobs $15,000 share flows through from the partnership to Bobs individual tax return. Assuming Bob is taxed at a 35% marginal rate, his tax on the $15,000 is $5,250 (0.35 $15,000). Bob must pay the $5,250 tax whether or not the BT Partnership distributes any of its profits to him.
If a partnership reports a loss, the partners allocable share of the loss reduces that partners other income and provides tax savings based on the partners marginal tax rate. The passive activity loss rules, however, may limit the amount of any loss deduction available to the partner. (For a discussion of these rules, see Chapter C:9 of this textbook.)
EXAMPLE C:2-4 Assume the same facts as in Example C:2-3 except that, instead of a profit, the BT Partnership sustains a $30,000 loss in its first year of operation. Assuming Bob is taxed at a 35% marginal rate, his $15,000 share of the first year loss produces a $5,250 (0.35 $15,000) tax savings.
ADDITIONAL COMMENT
In some states, a limited partnership can operate as a limited liability limited partnership (LLLP) whereby the general partners obtain limited liability. See Chapter C:10 for additional discussion.
A partnership can be either general or limited. In a general partnership, the liability of each partner for partnership debts is unlimited. Thus, these partners are at risk for more than the amount of their capital investment in the partnership. In a limited partnership, at least one partner must be a general partner, and at least one partner must be a limited partner. As in a general partnership, the general partners are liable for all partnership debts, and the limited partners are liable only to the extent of their capital investment in the partnership, plus any amount they are obligated to contribute under their partnership agreement. Unless specified in that agreement, limited partners generally may not participate in the management of the partnership business. TAX ADVANTAGES. The tax advantages of doing business as a partnership are as follows: The partnership as an entity pays no tax. Rather, the income of the partnership passes through to the separate returns of the partners and is taxed directly to them. A partners tax rate may be lower than a corporations tax rate for the same level of taxable income. Partnership income is not subject to double taxation. Although partnership profits are accounted for at the partnership level, they are taxed only at the partner level. Additional taxes generally are not imposed on distributions to the partners. With limited exceptions, partners can contribute money or property to, or withdraw money or property from, the partnership without recognizing gain or loss. Subject to limitations, partners can use losses to offset income from other sources. A partners basis in a partnership interest is increased by his or her share of partnership income. This basis adjustment reduces the amount of gain recognized when the partner sells his or her partnership interest, thereby preventing double taxation. TAX DISADVANTAGES. The tax disadvantages of doing business as a partnership are as follows: All the partnerships profits are taxed to the partners when earned, even if reinvested in the business. A partners tax rate could be higher than a corporations tax rate for the same level of taxable income. A partner is not considered to be an employee of the partnership. Therefore, he or she must pay the full amount of self-employment taxes on his or her share of partnership
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ADDITIONAL COMMENT
If two or more owners exist, a business cannot be conducted as a sole proprietorship. From a tax compliance and recordkeeping perspective, conducting a business as a partnership is more complicated than conducting the business as a sole proprietorship.
income. Some tax-exempt fringe benefits (e.g., premiums for group term life insurance) are not available to partners.3 Partners generally cannot defer income by choosing a fiscal year for the partnership that differs from the tax year of the principal partner(s). However, if the partnership demonstrates a business purpose, or if it makes a special election, it may use a fiscal year in general. Chapters C:9 and C:10 of this volume discuss partnerships in greater detail.
C O R P O R AT I O N S Corporations fall into two categories: C corporations and S corporations. A C corporation is subject to double taxation. Its earnings are taxed first at the corporate level when earned, then again at the shareholder level when distributed as dividends. An S corporation, by contrast, is subject to single-level taxation, much like a partnership. Its earnings are accounted for at the corporate level but are taxed only at the shareholder level.
ADDITIONAL COMMENT
Unlike a sole proprietorship and a partnership, a C corporation is a separate taxpaying entity. This form can be an advantage because corporate rates start at 15%, which may be much lower than an individual shareholders rate, which might be as high as 35%.
C CORPORATIONS. A C corporation is a separate entity taxed on its income at rates ranging from 15% to 35%.4 A C corporation must report all its income and expenses and compute its tax liability on Form 1120 (U.S. Corporation Income Tax Return). A completed Form 1120 appears in Appendix B. Shareholders are not taxed on the corporations earnings unless these earnings are distributed as dividends. Through 2010, dividends received by a noncorporate shareholder are taxed at the same rate that applies to net capital gains. This dividend rate is 15% for taxpayers whose tax bracket exceeds 15%. (See Chapter I:5 of the Individuals volume for details of this provision.)
Jane owns 100% of York Corporation stock. York reports taxable income of $50,000 for the current year. The first $50,000 of taxable income is taxed at a 15% rate, so York pays a corporate income tax of $7,500 (0.15 $50,000). If the corporation distributes none of its earnings to Jane during the year, she pays no tax on Yorks earnings. However, if York distributes its current after-tax earnings to Jane, she must pay tax on $42,500 ($50,000 $7,500) of dividend income. Assuming she is in the 35% marginal bracket, Janes tax on the dividend income is $6,375 (0.15 $42,500). The total tax on Yorks $50,000 of profits is $13,875 ($7,500 paid by York $6,375 paid by Jane).
EXAMPLE C:2-5
TAX STRATEGY TIP
If a shareholder is also an employee of the corporation, the corporation can avoid double taxation by paying a deductible salary instead of a dividend. The salary, however, must be reasonable in amount. See Tax Planning Considerations in Chapter C:3 for further discussion of this technique along with an example demonstrating how the reduced tax rate on dividends lessens the difference between salary and dividend payments.
Even when a corporation does not distribute its profits, double taxation may result. The profits are taxed to the corporation when they are earned. Then they may be taxed a second time (as capital gains) when the shareholder sells his or her stock or when the corporation liquidates.
On January 2 of the current year, Carl purchases 100% of York Corporation stock for $60,000. In the same year, York reports taxable income of $50,000, on which it pays tax of $7,500. The corporation distributes none of the remaining $42,500 to Carl. On January 3 of the next year, Carl sells his stock to Mary for $102,500 (his initial investment plus the current years accumulated earnings). Carl must report a capital gain of $42,500 ($102,500 $60,000). Thus, Yorks profit is effectively taxed twicefirst at the corporate level when earned and again at the shareholder level when Carl sells the appreciated stock at a gain.
EXAMPLE C:2-6
TAX STRATEGY TIP
By having a corporation accumulate earnings instead of paying dividends, the shareholder converts current ordinary income into deferred capital gains. The corporation, however, must avoid the accumulated earnings tax (see Chapter C:5).
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Tax Advantages. The tax advantages of doing business as a C corporation are as follows: A C corporation is an entity separate and distinct from its owners. Its marginal tax rate may be lower than its owners marginal tax rates. So long as these earnings are not distributed and taxed to both the shareholders and the corporation, aggregate tax savings may result. If retained in the business, the earnings may be used for reinvestment and the retirement of debt. This advantage, however, may be limited by the accumulated earnings tax and the personal holding company tax. (See Chapter C:5 for a discussion of these two taxes.)
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3 Partners are eligible to deduct their health insurance costs in the same manner as a sole proprietor. See footnote 2 for details.
As discussed in Chapter C:3, the corporate tax rate is 39% and 38% for certain levels of taxable income.
Shareholders employed by the corporation are considered to be employees for tax purposes. Consequently, they are liable for only half their Social Security taxes, while their corporate employer is liable for the other half. Shareholder-employees are entitled to tax-free fringe benefits (e.g., premiums paid on group term life insurance and accident and health insurance). The corporation can provide these benefits with before-tax dollars (instead of after-tax dollars). By contrast, because sole proprietors and partners are not considered to be employees for tax purposes, they are ineligible for certain tax-free fringe benefits, although they are permitted to deduct their health insurance premiums. A corporation may deduct as an ordinary and necessary business expense compensation paid to shareholder-employees. Within reasonable limits, it may adjust this compensation upward to shelter corporate taxable income. A C corporation can use a fiscal instead of a calendar year as its reporting period. A fiscal year could permit a corporation to defer income to a later reporting period. (A personal service corporation, however, generally must use a calendar year as its tax year.5) Special rules allow a shareholder to exclude 50% of the gain realized on the sale or exchange of stock held more than five years, provided the corporation meets certain requirements.
SELF-STUDY QUESTION
How are corporate earnings subject to double taxation?
Tax Disadvantages. The tax disadvantages of doing business as a C corporation are as follows: Double taxation of income results when the corporation distributes its earnings as dividends to shareholders or, effectively, when shareholders sell or exchange their stock. Shareholders generally cannot withdraw money or property from the corporation without recognizing income. A distribution of cash or property to a shareholder generally is taxable as a dividend if the corporation has sufficient earnings and profits (E&P). (See Chapter C:4 for a discussion of E&P.) Net operating losses confer no tax benefit to the owners in the year the corporation incurs them. They can be carried back or carried forward to offset the corporations income in other years. For start-up corporations, these losses provide no tax benefit until the corporation earns a profit in a subsequent year. Shareholders cannot use these losses to offset income from other sources. Capital losses confer no tax benefit to the owners in the year the corporation incurs them. They cannot offset the ordinary income of either the corporation or its shareholders. These losses must be carried back or carried forward to offset corporate capital gains realized in other years. S CORPORATIONS. An S corporation is so designated because special rules governing its tax treatment are found in Subchapter S of the IRC. Nevertheless, the general corporate tax rules apply unless overridden by the Subchapter S provisions. Like a partnership, an S corporation is a pass-through entity. Income, deductions, losses, and credits are accounted for by the S corporation, which generally is not subject to taxation. They pass through to the separate returns of its owners, who generally are subject to taxation. An S corporation offers its owners less flexibility than does a partnership. For example, the number and type of S corporation shareholders are limited, and the shareholders cannot allocate income, deductions, losses, and credits in a way that differs from their proportionate ownership. Like C corporation shareholders, S corporation shareholders enjoy limited liability. To obtain S corporation status, a corporation must make a special election, and its shareholders must consent to that election. Each year, an S corporation files an information return, Form 1120S (U.S. Income Tax Return for an S Corporation), which reports the results of its operations and indicates the items of income, deduction, loss, and credit that pass through to the separate returns of its shareholders.
ANSWER
Corporate earnings initially are taxed to the corporation. In addition, once these earnings are distributed to the shareholders (dividends), they are taxed again. Because the corporation does not receive a deduction for the distribution, these earnings have been taxed twice. Also, double taxation can occur when a shareholder sells his or her stock at a gain. Through 2012, qualified dividends and long-term capital gains both are subject to the 15% maximum tax rate.
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Sec. 441. See Chapter C:3 for the special tax year restrictions applying to personal service corporations.
Corporate Formations and Capital Structure Corporations 2-7 EXAMPLE C:2-7 Chuck owns 50% of the stock in Maine, an S corporation that uses the calendar year as its tax year. For its first year of operation, Maine reports $30,000 of taxable income, all ordinary in character. Maine pays no corporate income tax. Chuck, however, must pay tax on his $15,000 (0.50 $30,000) share of Maines income whether or not the corporation distributes this income to him. If his marginal rate is 35%, Chuck pays $5,250 (0.35 $15,000) of tax on this share. If Maine instead reports a $30,000 loss, Chucks $15,000 share of the loss reduces his tax liability by $5,250 (0.35 $15,000).
TAX STRATEGY TIP

If a corporation anticipates losses in its early years, it might consider operating as an S corporation so that the losses pass through to the shareholders. When the corporation becomes profitable, it can revoke the S election if it wishes to accumulate earnings for growth.
Tax Advantages. The tax advantages of doing business as an S corporation are as follows: S corporations generally pay no tax. Corporate income passes through and is taxed to the shareholders. The shareholders marginal tax rates may be lower than a C corporations marginal tax rate, thereby producing overall tax savings. Corporate losses flow through to the separate returns of the shareholders and may be used to offset income earned from other sources. (Passive loss and basis rules, however, may limit loss deductions to shareholders. See Chapter C:11.) This treatment can be beneficial to owners of start-up corporations that generate losses in their early years of operation. Because capital gains, as well as other tax-related items, retain their character when they pass through to the separate returns of shareholders, the shareholders are taxed on these gains as though they directly realized them. Consequently, they can offset the gains against capital losses from other sources. Furthermore, they are taxed on these gains at their own capital gains rates. Shareholders generally can contribute money to or withdraw money from an S corporation without recognizing gain. Corporate profits are taxed only at the shareholder level in the year earned. Generally, the shareholders incur no additional tax liability when the corporation distributes the profits. A shareholders basis in S corporation stock is increased by his or her share of corporate income. This basis adjustment reduces the shareholders gain when he or she later sells the S corporation stock, thereby avoiding double taxation.
TAX STRATEGY TIP

Relatively low individual tax rates may increase the attractiveness of an S corporation relative to the C corporation form of doing business.
Tax Disadvantages. The tax disadvantages of doing business as an S corporation are as follows: Shareholders are taxed on all of an S corporations current year profits whether or not the corporation distributes these profits and whether or not the shareholders have the wherewithal to pay the tax on these profits. If the shareholders marginal tax rates exceed those for a C corporation, the overall tax burden may be heavier, and the after-tax earnings available for reinvestment and debt retirement may be reduced. Nontaxable fringe benefits generally are not available to S corporation shareholderemployees.6 Ordinarily, fringe benefits provided by an S corporation are deductible by the corporation and taxable to the shareholder. On the other hand, S corporation shareholder-employees pay half of Social Security taxes while the S corporation employer pays the other half. S corporations generally cannot defer income by choosing a fiscal year other than a calendar year unless the S corporation can establish a legitimate business purpose for a fiscal year or unless it makes a special election. Chapter C:11 discusses S corporations in greater detail. In addition, Appendix F compares the tax treatment of C corporations, partnerships, and S corporations.
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S corporation shareholders may deduct their health insurance costs in the same manner as sole proprietors and partners. See footnote 2 for details.

ADDITIONAL COMMENT
All 50 states have adopted statutes allowing LLCs.
L I M I T E D L I A B I L I T Y C O M PA N I E S A limited liability company (LLC) combines the best features of a partnership with those of a corporation even though, from a legal perspective, it is neither. While offering its owners the limited liability of a corporation, an LLC with more than one owner generally is treated as a partnership for tax purposes. This limited liability extends to all the LLCs owners. In this respect, the LLC is similar to a limited partnership with no general partners. Unlike an S corporation, an LLC may have an unlimited number of owners who can be individuals, corporations, estates, and trusts. As discussed below, under the check-thebox regulations, the LLC may elect to be taxed as a corporation or be treated by default as a partnership. If treated as a partnership, the LLC files Form 1065 (U.S. Partnership Return of Income) with the IRS. L I M I T E D L I A B I L I T Y PA R T N E R S H I P S Many states allow a business to operate as a limited liability partnership (LLP). This business form is attractive to professional service organizations, such as public accounting firms, that adopt LLP status primarily to limit their legal liability. Under state LLP laws, partners are liable for their own acts and omissions as well as the acts and omissions of individuals under their direction. On the other hand, LLP partners are not liable for the negligence or misconduct of the other partners. Thus, from a legal liability perspective, an LLP partner is like a limited partner with respect to other partners acts but like a general partner with respect to his or her own acts, as well as the acts of his or her agents. Like a general partnership or LLC with more than one owner, an LLP can elect to be taxed as a corporation under the check-the-box regulations. If treated as a partnership by default, the LLP files Form 1065 (U.S. Partnership Return of Income) with the IRS.
REAL-WORLD EXAMPLE
All the Big 4 accounting firms have converted general partnerships into LLPs.
R E G U L AT I O N S
OBJECTIVE
CH E C K - T H E - B O X
Apply the check-the-box regulations to partnerships, corporations, and trusts
TAX STRATEGY TIP

When applying the federal checkthe-box regulations, taxpayers also must check to see whether or not their state will treat the entity in a consistent manner.
Most unincorporated businesses may choose to be taxed as a partnership or a corporation under rules commonly referred to as the check-the-box regulations. According to these regulations, an unincorporated business with two or more owners is treated by default as a partnership for tax purposes unless it elects to be taxed as a corporation. An unincorporated business with one owner is disregarded as a separate entity and thus treated as a sole proprietorship by default unless it elects to be taxed as a corporation.7 An eligible entity (i.e., an unincorporated business) may elect its classification by filing Form 8832 (Entity Classification Election) with the IRS. The form must be signed by each owner of the entity, or any officer, manager, or owner of the entity authorized to make the election. The signatures must specify the date on which the election will be effective. The effective date cannot be more than 75 days before or 12 months after the date the entity files Form 8832. A copy of the form must be attached to the entitys tax return for the election year.
On January 10 of the current year, a group of ten individuals organizes an LLC to conduct a bookbinding business in Texas. In the current year, the LLC is an eligible entity under the checkthe-box regulations and thus may elect (with the owners consent) to be taxed as a corporation. If the LLC does not make the election, it will be treated as a partnership for tax purposes by default. Assume the same facts as in Example C:2-8 except only one individual organized the LLC. Unless the LLC elects to be taxed as a corporation, it will be disregarded for tax purposes by default. Consequently, its income will be taxed directly to the owner as if it were a sole proprietorship.
EXAMPLE C:2-8
EXAMPLE C:2-9
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7 This rule does not apply to corporations, trusts, or certain special entities such as real estate investment trusts, real estate mortgage investment conduits, or publicly traded partnerships. Reg. Sec. 301.7701-2(b)(8). Publicly
traded partnerships are discussed in Chapter C:10. Special check-the-box rules apply to foreign corporations. These rules are beyond the scope of this text.
If an entity elects to change its tax classification, it cannot make another election until 60 months after the effective date of the initial election. Following the election, certain tax consequences ensue. For example, following a partnerships election to be taxed as a corporation, the partnership is deemed to distribute its assets to the partners, who are then deemed to contribute the assets to a new corporation in a nontaxable exchange for stock. If an eligible entity that previously elected to be taxed as a corporation subsequently elects to be treated as a partnership or a disregarded entity, it is deemed to have distributed its assets and liabilities to its owners or owner in a liquidation as described in Chapter C:6. If a partnership, the deemed distribution is followed by a deemed contribution of assets and liabilities to a newly formed partnership.8
LE G A L
OBJECTIVE
REQUIREMENTS FOR F O R M I N G A C O R P O R AT I O N
Determine the legal requirements for forming a corporation
The legal requirements for forming a corporation depend on state law. These requirements generally include Investing a minimum amount of capital Filing articles of incorporation Issuing stock Paying state incorporation fees One of the first decisions an entrepreneur must make when organizing a corporation is the state of incorporation. Although most entrepreneurs incorporate in the state where they conduct business, many incorporate in other states with favorable corporation laws. Such laws might provide for little or no income, sales, or use taxes; low minimum capital requirements; and modest incorporation fees. Regardless of the state of incorporation, the entrepreneur must follow the incorporation procedure set forth in the relevant state statute. Typically, under this procedure, the entrepreneur must file articles of incorporation with the appropriate state agency. The articles must specify certain information, such as the formal name of the corporation; its purpose; the par value, number of shares, and classes of stock it is authorized to issue; and the names of the individuals who will initially serve on the corporations board of directors. The state usually charges a fee for incorporation or filing. In addition, it periodically may assess a franchise tax for the privilege of doing business in the state.
ADDITIONAL COMMENT
States are not consistent in how they tax corporations. Certain states have no state income taxes. Other states do not recognize an S election, thereby taxing an S corporation as a C corporation.
C O N S I D E R AT I O N S I N F O R M I N G A C O R P O R AT I O N
Once the entrepreneur decides on the corporate form, he or she must transfer money, property (e.g., equipment, furniture, inventory, and receivables), or services (e.g., accounting, legal, or architectural services) to the corporation in exchange for its debt or equity. These transfers may have tax consequences for both the transferor investor and the transferee corporation. For instance, the sale of property for stock usually is taxable to the transferor.9 However, if Sec. 351(a) (which treats an investors interest in certain transferred business assets to be changed in form rather than disposed of) applies, any gain or loss realized on the exchange may be deferred. In determining the tax consequences of incorporation, one must answer the following questions:
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TA X
What property should be transferred to the corporation? What services should the transferors or third parties provide for the corporation?
8 Reg. Sec. 301.7701-3(g). An alternative way for a corporation to be taxed as a pass-through entity is to make an election to be taxed as an S corporation. See Chapter C:11.
Sec. 1001.
What liabilities, in addition to property, should be transferred? How should the property be transferred (e.g., sale, contribution to capital, or loan)? Example C:2-10 and Table C:2-1 compare the tax consequences of taxable and nontaxable property transfers.
EXAMPLE C:2-10 For several years Brad has operated a successful manufacturing business as a sole proprietorship. To limit his liability, he decides to incorporate his business as Block Corporation. Immediately preceding the incorporation, he reports the following balance sheet for his sole proprietorship, which uses the accrual method of accounting: Adjusted Basis Assets: Cash Accounts receivable Inventory Equipment Minus: Depreciation Total Liabilities and owners equity: Accounts payable Note payable on equipment Owners equity Total $ 10,000 15,000 20,000 $120,000 (35,000) 85,000 $130,000 $ 30,000 50,000 50,000 $130,000 Fair Market Value $ 10,000 15,000 25,000 100,000 $150,000 $ 30,000 50,000 70,000 $150,000
When Brad transfers the assets to Block in exchange for its stock, he realizes a gain because the value of the stock received exceeds his basis in the assets. If the exchange is taxable, Brad recognizes $5,000 of ordinary income on the transfer of the inventory ($25,000 FMV $20,000 basis) and, because of depreciation recapture, $15,000 of ordinary income on the transfer of the equipment ($100,000 FMV $85,000 basis). However, if the exchange meets the requirements of Sec. 351(a), it is tax-free. In other words, Brad recognizes none of the income or gain realized on the transfer of assets and liabilities to Block.
STOP & THINK
Question: Joyce has conducted a business as a sole proprietorship for several years. She needs additional capital and wants to incorporate her business. The assets of her business (building, land, inventory, etc.) have a $400,000 adjusted basis and a $1.5 million FMV. Joyce is willing to exchange the assets for 1,500 shares of Ace Corporation stock, each having a $1,000 fair market value. Bill and John each are willing to invest $500,000 in Joyces business for 500 shares of stock. Why is Sec. 351 important to Joyce? Does it matter to Bill and John? Solution: If not for Sec. 351, Joyce would recognize gain on the incorporation of her business. She realizes a gain of $1.1 million ($1,500,000 $400,000) on her contribution of proprietorship assets to a new corporation in exchange for 60% of its outstanding shares (1,500 [1,500 500 500] 0.60). However, she recognizes none of this gain because she meets the requirements of Sec. 351. Section 351 does not affect Bill or John because each is simply purchasing 20% of the new corporations stock for $500,000 cash. They will not realize or recognize gain or loss unless they subsequently sell their stock at a price above or below the $500,000 cost. If all exchanges of property for corporate stock were taxable, many entrepreneurs would find the tax cost of incorporating their business prohibitively high. In Example C:2-10, for example, Brad would recognize a $20,000 gain on the exchange of his assets for the corporate stock. Moreover, because losses also are realized in an exchange, without special rules, taxpayers could exchange loss property for stock and recognize the loss while maintaining an equity interest in the property transferred.
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TABLE C:2-1
Overview of Corporate Formation Rules

Tax Treatment for: Transferors: 1. Gain realized Taxable Property Transfer Nontaxable Property Transfer
FMV of stock received Money received FMV of noncash boot property (including securities) received Amount of liabilities assumed by transferee corporation Minus: Adjusted basis of property transferred Realized gain (Sec. 1001(a)) Transferors recognize the entire amount of realized gain (Sec. 1001(c)) Losses may be disallowed under related party rules (Sec. 267(a)(1)) Installment sale rules may apply to the realized gain (Sec. 453)
Same as taxable transaction
2. Gain recognized
Transferors recognize none of the realized gain unless one of the following exceptions applies (Sec. 351(a)): a. Boot property is received (Sec. 351(b)) b. Liabilities are transferred to the corporation for a nonbusiness or tax avoidance purpose (Sec. 357(b)) c. Liabilities exceeding basis are transferred to the corporation (Sec. 357(c)) d. Services, certain corporate indebtednesses, and interest claims are transferred to the corporation (Sec. 351(d)) The installment method may defer recognition of gain when a shareholder receives a corporate note as boot (Sec. 453) Basis of property transferred to the corporation Plus: Gain recognized Minus: Money received (including liabilities treated as money) FMV of noncash boot property Total basis of stock received (Sec. 358(a)) Allocation of total stock basis is based on relative FMVs Basis of noncash boot property is its FMV
3. Basis of property received
FMV (Cost) (Sec. 1012)
4. Holding period of property received
Day after the exchange date
Holding period of stock received includes holding period of Sec. 1231 property or capital assets transferred; otherwise it begins the day after the exchange date
Transferee Corporation: 1. Gain recognized
The corporation recognizes no gain or loss on the receipt of money or other property in exchange for its stock (including treasury stock) (Sec. 1032) FMV (Cost) (Sec. 1012)
Same as taxable transaction except the corporation may recognize gain under Sec. 311 if it transfers appreciated noncash boot property (Sec. 351(f)) Generally, same as in transferors hands plus any gain recognized by transferor (Sec. 362) If the total adjusted basis of all transferred property exceeds the total FMV of the property, the total basis to the transferor is limited to the propertys total FMV Transferors carryover holding period for the property transferred regardless of the propertys character (Sec. 1223(2)) Day after the exchange date if basis is reduced to FMV
2. Basis
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3. Holding period
Day after the exchange date
To allow taxpayers to incorporate without incurring a high tax cost and to prevent taxpayers from recognizing losses while maintaining an equity claim to the loss assets, Congress enacted Sec. 351.
ECTION 351: DEFERRING GAIN OR LOSS UPON I N C O R P O R AT I O N

OBJECTIVE
Explain the requirements for deferring gain or loss upon incorporation
TAX STRATEGY TIP

A transferor who wishes to recognize gain or loss must take steps to avoid Sec. 351 by deliberately failing at least one of its requirements or by engaging in sales transactions. See Tax Planning Considerations later in this chapter for details.
Section 351(a) provides that transferors recognize no gain or loss when they transfer property to a corporation solely in exchange for the corporations stock provided that, immediately after the exchange, the transferors are in control of the corporation. Section 351 does not apply to a transfer of property to an investment company, nor does it apply in certain bankruptcy cases. This rule is based on the premise that, when property is transferred to a controlled corporation, the transferors merely exchange direct ownership for indirect ownership through stock ownership of the transferee corporation, which gives them an equity interest in the underlying assets. In other words, the transferors maintain a continuity of interest in the transferred property. Furthermore, if the only consideration the shareholders receive is stock, they have not generated cash with which to pay their taxes. If the transferors of property receive other consideration in addition to stock, such as cash or debt instruments, they will have the wherewithal to pay taxes and, under Sec. 351(b), may have to recognize some or all of their realized gain. A transferors realized gain or loss that is unrecognized for tax purposes, however, is not exempt from taxation. It is only deferred until the shareholder sells or exchanges the stock received in the Sec. 351 exchange. Shareholders who receive stock in such an exchange take a stock basis that reflects the deferred gain or loss. For example, if a shareholder receives stock in exchange for property and recognizes no gain or loss, the stock basis equals the basis of property transferred less liabilities assumed by the corporation (see Table C:2-1). This tax treatment is discussed later in this chapter. Under an alternative approach, the stock basis can be calculated as follows: FMV of qualified stock received, minus any deferred gain (or plus any deferred loss). This latter approach highlights the deferral aspect of this type of transaction. If the shareholder later sells the stock, he or she will recognize the deferred gain or loss inherent in the basis adjustment.
Assume the same facts as in Example C:2-10. If Brad satisfies the conditions of Sec. 351, he will not recognize the $20,000 realized gain ($15,000 gain on equipment $5,000 gain on inventory) when he transfers the assets and liabilities of his sole proprietorship to Block Corporation. Under the alternative approach, Brads basis in the Block stock is decreased to reflect the deferred gain. Thus, Brads basis in the Block stock is $50,000 ($70,000 FMV $20,000 deferred gain). If Brad later sells his stock for its $70,000 FMV, he will recognize the $20,000 gain at that time.
EXAMPLE C:2-11
The specific requirements for deferral of gain and loss under Sec. 351(a) are The transferors must transfer property to the corporation. They must receive stock of the transferee corporation in exchange for their property. They must be in control of the corporation immediately after the exchange. Each of these requirements is explained below.
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THE PROPERTY REQUIREMENT The rule of gain or loss nonrecognition applies only to transfers of property to a corporation in exchange for the corporations stock. Section 351 does not define the term property. However, the courts and the IRS have defined property to include money and almost any other asset, including installment obligations, accounts receivable, inventory, equipPrentice Hall's Federal Taxation 2012 Corporations, Partnerships, Estates & Trusts, Twenty Fifth Edition, by Kenneth E. Anderson, Thomas R. Pope, and John L. Kramer. Published by Prentice Hall. Copyright 2012 by Pearson Education, Inc.
ment, patents and other intangibles representing know-how, trademarks, trade names, and computer software.10 Excluded from the statutory definition of property are11 Services (such as legal or accounting services) rendered to the corporation in exchange for its stock Indebtedness of the transferee corporation not evidenced by a security Interest on transferee corporation debt that accrued on or after the beginning of the transferors holding period for the debt The first of these exclusions perhaps is the most important. A person receiving stock in compensation for services must recognize the stocks FMV as ordinary income for tax purposes. In other words, an exchange of services for stock is a taxable transaction even where concurrent transfers of property for stock are nontaxable under Sec. 351.12 A shareholders basis in the stock received in compensation for services is the stocks FMV.
EXAMPLE C:2-12 Amy and Bill form West Corporation. Amy exchanges property for 90 shares (90% of the outstanding shares) of West stock. Amys exchange is nontaxable because Amy has exchanged property for stock and controls West immediately after the exchange. Bill performs accounting services in exchange for ten shares of West stock worth $10,000. Bills exchange is taxable because he has provided services in exchange for stock. Thus, Bill recognizes $10,000 of ordinary incomethe FMV of the stockas compensation for his services. Bills basis in the stock is its $10,000 FMV.
THE CONTROL REQUIREMENT Section 351 requires the transferors, as a group, to be in control of the transferee corporation immediately after the exchange. A transferor may be an individual or any type of tax entity (such as a partnership, another corporation, or a trust). Section 368(c) defines control as ownership of at least 80% of the total combined voting power of all classes of stock entitled to vote and at least 80% of the total number of shares of all other classes of stock (e.g., nonvoting preferred stock).13 The minimum ownership levels for nonvoting stock apply to each class of stock rather than to the nonvoting stock in total.14
EXAMPLE C:2-13 Dan exchanges property having a $22,000 adjusted basis and a $30,000 FMV for 60% of newly created Sun Corporations single class of stock. Ed exchanges $20,000 cash for the remaining 40% of Sun stock. The transaction qualifies as a nontaxable exchange under Sec. 351 because the transferors, Dan and Ed, together own at least 80% of the Sun stock immediately after the exchange. Therefore, Dan defers recognition of his $8,000 ($30,000 $22,000) realized gain. (Ed realizes no gain because he contributes cash.)
Because services do not qualify as property, stock received by a person who exclusively provides services does not count toward the 80% control threshold. Unless transferors of property own at least 80% of the corporations stock immediately after the exchange, the control requirement will not be met, and the entire transaction will be taxable.
EXAMPLE C:2-14 Dana transfers property having an $18,000 adjusted basis and a $35,000 FMV to newly created York Corporation for 70 shares of York stock. Ellen provides legal services worth $15,000 for the remaining 30 shares of York stock. Because Ellen does not transfer property to York, her stock is not counted toward the 80% ownership threshold. On the other hand, because Dana transfers property to York, his stock is counted toward this threshold. However, Dana is not in control of York immediately after the exchange because he owns only 70% of York stock. Therefore, Dana recognizes all $17,000 ($35,000 $18,000) of his gain realized on the exchange. Danas basis in his York stock is its $35,000 FMV. Ellen recognizes $15,000 of ordinary income, the FMV of stock received for her services. Ellens basis in her York stock is $15,000. The tax consequences to Ellen are the same whether or not Dana meets the control requirement.
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10 For an excellent discussion of the definition of property, see footnote 6 of D.N. Stafford v. U.S., 45 AFTR 2d 80-785, 80-1 USTC 9218 (5th Cir., 1980). 11 Sec. 351(d). 12 Secs. 61 and 83. 13 In determining whether the 80% requirements are satisfied, the construc-
tive ownership rules of Sec. 318 do not apply (see Rev. Rul. 56-613, 1956-2 C.B. 212). See Chapter C:4 for an explanation of Sec. 318. 14 Rev. Rul. 59-259, 1959-2 C.B. 115, as modified by Rev. Rul. 81-17, 1981-1 C.B. 75.
If the property transferors own at least 80% of the stock immediately after the exchange, they, but not the provider of services, will be in control of the transferee corporation.
EXAMPLE C:2-15 Assume the same facts as in Example C:2-14, except a third individual, Fred, contributes $35,000 in cash for 70 shares of York stock. Now Dana and Fred together own more than 80% of the York stock (140 170 0.82) immediately after the exchange. Therefore, the Sec. 351 control requirement is met, and neither Dana nor Fred recognizes gain on the exchange. Ellen still must recognize $15,000 of ordinary income, the FMV of the stock she receives for her services.
TRANSFERORS OF BOTH PROPERTY AND SERVICES. If a person transfers both services and property to a corporation in exchange for the corporations stock, all the stock received by that person, including stock received in exchange for services, is counted toward the 80% control threshold.15
EXAMPLE C:2-16 Assume the same facts as in Example C:2-14 except that, in addition to providing legal services worth $15,000, Ellen contributes property worth at least $1,500. In this case, all of Ellens stock counts toward the 80% ownership threshold. Because Dana and Ellen together own 100% of the York stock, the exchange meets the Sec. 351 control requirement. Therefore, Dana recognizes no gain on his property exchange. However, Ellen still must recognize $15,000 of ordinary income, the FMV of the stock received as compensation for services.
When a person transfers both property and services in exchange for a corporations stock, the property must have more than nominal value for that persons stock to count toward the 80% control threshold.16 The IRS generally requires that the FMV of the stock received for transferred property be at least 10% of the value of the stock received for services provided. If the value of the stock received for the property is less than 10% of the value of the stock received for the services, the IRS will not issue an advance ruling to the effect that the transaction meets the requirements of Sec. 351.17
EXAMPLE C:2-17 Assume the same facts as in Example C:2-16 except that Ellen contributes only $1,000 worth of property in addition to $15,000 of legal services. In this case, the IRS will not issue an advance ruling that the transaction meets the Sec. 351 requirements because the FMV of stock received for the property ($1,000) is less than 10% of the value of the stock received for the services ($1,500 0.10 $15,000). Consequently, if the IRS audits Ellens tax return for the year of transfer, it probably will challenge Danas and Ellens position that the transfer is nontaxable under Sec. 351.
TRANSFERS TO EXISTING CORPORATIONS. Section 351 applies to transfers to an existing corporation as well as transfers to a newly created corporation. The same requirements must be met in both cases. Property must be transferred in exchange for stock, and the property transferors must be in control of the corporation immediately after the exchange.
EXAMPLE C:2-18 Jack and Karen own 75 and 25 shares, respectively, of Texas Corporation stock. Jack transfers property with a $15,000 adjusted basis and a $25,000 FMV to the corporation in exchange for an additional 25 shares of Texas stock. The Sec. 351 control requirement is met because, immediately after the exchange, Jack owns 80% (100 125 0.80) of Texas stock. Therefore, Jack recognizes no gain.
If a shareholder transfers property to an existing corporation for additional stock but does not own at least 80% of the stock after the exchange, the control requirement is not met. Thus, Sec. 351 denies tax-free treatment for many transfers of property to an existing corporation by a new shareholder. A new shareholders transfer of property to an existing corporation is nontaxable only if that shareholder acquires at least 80% of the corporations stock, or if enough existing shareholders also transfer additional property so that the transferors as a group, including the new shareholder, control the corporation immediately after the exchange.
15 16 17 Rev. Proc. 77-37, 1977-2 C.B. 568, Sec. 3.07, as modified by T.D. 8761, 1998-1 C.B. 812.
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Reg. Sec. 1.351-1(a)(2), Ex. (3). Reg. Sec. 1.351-1(a)(1)(ii).
Corporate Formations and Capital Structure Corporations 2-15 EXAMPLE C:2-19 Alice owns all 100 shares of Local Corporation stock, valued at $100,000. Beth owns property with a $15,000 adjusted basis and a $100,000 FMV. Beth contributes the property to Local in exchange for 100 shares of newly issued Local stock. The Sec. 351 control requirement is not met because Beth owns only 50% of Local stock immediately after the exchange. Therefore, Beth recognizes an $85,000 ($100,000 $15,000) gain.
If an existing shareholder exchanges property for additional stock to enable another shareholder to qualify for tax-free treatment under Sec. 351, the stock received must be of more than nominal value.18 For advance ruling purposes, the IRS requires that this value be at least 10% of the value of the stock already owned.19
EXAMPLE C:2-20 Assume the same facts as in Example C:2-19 except that Alice transfers additional property worth $10,000 for an additional ten shares of Local stock. Now both Alice and Beth are transferors, and the Sec. 351 control requirement is met. Consequently, neither Alice nor Beth recognizes gain on the exchange. If Alice receives fewer than ten shares, the IRS will not issue an advance ruling that the exchange is tax-free under Sec. 351.
STOP & THINK Question: Matthew and Michael each own 50 shares of Main Corporation stock having
a $250,000 FMV. Matthew wants to transfer property with a $40,000 adjusted basis and a $100,000 FMV to Main in exchange for an additional 20 shares. Can Matthew avoid recognizing $60,000 ($100,000 $40,000) of the gain realized on the transfer? Solution: If Matthew simply exchanges the property for additional stock, he must recognize the gain. The Sec. 351 control requirement will not have been met because Matthew will own only 70 of the 120 outstanding shares (or 58.33%) immediately after the exchange. Gain recognition can be avoided in two ways: 1. Matthew can transfer sufficient property (i.e., $750,000 worth) to Main to receive 150 additional shares so that, immediately after the exchange, he will own 80% (200 out of 250 shares) of Main stock. 2. Alternatively, Michael also can contribute additional property to qualify as a transferor. Specifically, he can contribute to the corporation at least $25,000, or 10% of the $250,000 value of the Main stock that he already owns so that together the two transferors will own 100% of Main stock immediately after the exchange. DISPROPORTIONATE EXCHANGES OF PROPERTY AND STOCK. Section 351 does not require that the value of the stock received by the transferors be proportionate to the value of the property transferred. However, if the value of the stock received is not proportionate to the value of the property transferred, the exchange may be treated in accordance with its economic effect, that is, a proportional exchange followed by a constructive gift, compensation payment, or extinguishment of a liability owed by one shareholder to another.20 If the deemed effect of the transaction is a gift from one transferor to another, for example, the donor will be treated as though he or she received stock equal in value to that of the property contributed and then gave some of the stock to the donee.
EXAMPLE C:2-21 Don and his son John transfer property worth $75,000 (adjusted basis of $42,000 to Don) and $25,000 (adjusted basis of $20,000 to John), respectively, to newly formed Star Corporation in exchange for all 100 shares of Star stock. Don and John receive 25 and 75 shares of Star stock, respectively. Because Don and John are in control of Star immediately after the exchange, they recognize no gain or loss. However, because Don and John did not receive the stock in proportion to the FMV of their respective property contributions, Don might be deemed to have received 75 shares (worth $75,000), then to have given 50 shares (worth $50,000) to John. If the IRS deems such a gift, it might require Don to pay gift taxes. Dons basis in his remaining 25 shares is $14,000 [(25 75) $42,000 basis in the property transferred]. Johns basis in the 75 shares is $48,000 [$20,000 basis in the property transferred by John ($42,000 $14,000) basis in the shares deemed to have been gifted by Don].
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Reg. Sec. 1.351-1(a)(1)(ii). Rev. Proc. 77-37, 1977-2 C.B. 568, Sec. 3.07, as modified by T.D. 8761, 1998-1 C.B. 812.
19
18
20
Reg. Sec. 1.351-1(b)(1).
IMMEDIATELY AFTER THE EXCHANGE. Section 351 requires that the transferors be in control of the transferee corporation immediately after the exchange. This requirement does not mean that all transferors must simultaneously exchange their property for stock. It does mean, however, that all the exchanges must be agreed to beforehand, and the agreement must be executed in an expeditious and orderly manner.21
EXAMPLE C:2-22
TAX STRATEGY TIP
If one shareholder has a prearranged plan to dispose of his or her stock, and the disposition drops the ownership of the transferor shareholders below the required 80% control, such disposition can disqualify the Sec. 351 transaction for all the shareholders. As a possible protection, all shareholders could provide a written representation that they do not currently have a plan to dispose of their stock.
Art, Beth, and Carlos form New Corporation. Art and Beth each transfer noncash property worth $25,000 in exchange for one-third of the New stock. Carlos contributes $25,000 cash for another one-third of the New stock. Art and Carlos transfer their property and cash, respectively, on January 10. Beth transfers her property on March 3. Because all three transfers are part of the same prearranged transaction, the transferors are deemed to be in control of the corporation immediately after the exchange.
Section 351 does not require the transferors to retain control of the transferee corporation for any specific length of time after the exchange. Control is required only immediately after the exchange. The IRS has interpreted this phrase to mean that the transferors must not have a prearranged plan to dispose of their stock outside the control group. If they do have such a plan, they are not considered to be in control immediately after the exchange.22
Amir, Bill, and Carl form White Corporation. Each contributes to White appreciated property worth $25,000 in exchange for one-third of White stock. Before the exchange, Amir arranges to sell his stock to Dana as soon as he receives it. This prearranged plan implies that Amir, Bill, and Carl do not have control immediately after the exchange because Bill and Carl own only 66.7% of the stock while Amir has disposed of his interest. Therefore, each must recognize gain in the exchange.
EXAMPLE C:2-23
THE STOCK REQUIREMENT Under Sec. 351, transferors who exchange property solely for transferee corporation stock recognize no gain or loss if they control the corporation immediately after the exchange. Stock for this purpose may be voting or nonvoting. On the other hand, nonqualified preferred stock is treated as boot. Preferred stock generally has a preferred claim to dividends and liquidating distributions. Such stock is nonqualified if
The shareholder can require the corporation to redeem it, The corporation either is required to redeem the stock or is likely to exercise a right to redeem it, or The dividend rate on the stock varies with interest rates, commodity prices, or other similar indices. These features render the preferred stock more like cash or debt than like equity. Thus, it is treated as boot subject to the rules discussed below. In addition, stock rights or stock warrants are not considered stock for purposes of Sec. 351.23 Topic Review C:2-1 summarizes the major requirements for a nontaxable exchange under Sec. 351.
EFFECT OF SEC. 351 ON THE TRANSFERORS If all Sec. 351 requirements are met, the transferors recognize no gain or loss on the exchange of their property for stock in the transferee corporation. The receipt of property other than stock does not necessarily render the entire transaction taxable. Rather, it could result in the recognition of all or part of the transferors realized gain.
RECEIPT OF BOOT. If a transferor receives any money or property other than stock in the transferee corporation, the additional money or property is considered to be boot. Boot may include cash, notes, securities, or stock in another corporation. Upon receiving boot, the transferor recognizes gain to the extent of the lesser of the transferors realized
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21 22
Reg. Sec. 1.351-1(a)(1). Rev. Rul. 79-70, 1979-1 C.B. 144.
23
Reg. Sec. 1.351-1(a)(1)(ii).
Topic Review C:2-1
Major Requirements of Sec. 351

1. The nonrecognition of gain or loss rule applies only to transfers of property in exchange for a corporations stock. It does not apply to an exchange of services for stock. 2. The property transferors must be in control of the transferee corporation immediately after the exchange. Control means ownership of at least 80% of the voting power and at least 80% of the total number of shares of all other classes of stock. Stock disposed of after the exchange pursuant to a prearranged plan does not meet the immediately after the exchange requirement. 3. The nonrecognition rule applies only to the gain realized in an exchange of property for stock. If the transferor receives property other than stock, such property is considered to be boot. The transferor recognizes gain to the extent of the lesser of the FMV of any boot received or the realized gain.
gain or the FMV of the boot property received.24 A transferor never recognizes a loss in an exchange qualifying under Sec. 351 whether or not he or she receives boot. The character of the recognized gain depends on the type of property transferred. For example, if the shareholder transfers a capital asset such as stock in another corporation, the recognized gain is capital in character. If the shareholder transfers Sec. 1231 property, such as equipment or a building, the recognized gain is ordinary in character to the extent of any depreciation recaptured under Sec. 1245 or 1250.25 Thus, depreciation is not recaptured unless the transferor receives boot and recognizes a gain on the depreciated property transferred.26 If the shareholder transfers inventory, the recognized gain is entirely ordinary in character.
EXAMPLE C:2-24 Pam, Rob, and Sam form East Corporation and transfer the following property: Transferor Pam Rob Sam Asset Machinery Land Cash Transferors Adj. Basis $10,000 18,000 17,500 FMV $12,500 25,000 17,500 Consideration Received 25 shares East stock 40 shares East stock and $5,000 East note 35 shares East stock
The machinery and land are, respectively, Sec. 1231 property and a capital asset. The exchange meets the requirements of Sec. 351 except that, in addition to East stock, Rob receives boot of $5,000 (the FMV of the note). Rob realizes a $7,000 ($25,000 $18,000) gain, of which he recognizes $5,000the lesser of the $7,000 realized gain or the $5,000 boot received. The gain is capital in character because the property transferred was a capital asset in Robs hands. Pam realizes a $2,500 gain on her exchange of machinery. However, even though Pam would have been required to recapture depreciation had she sold or exchanged the machinery, she recognizes no gain because she received no boot. Sam neither realizes nor recognizes gain on his cash purchase of East stock.
ADDITIONAL COMMENT
If multiple assets were aggregated into one computation, any built-in losses would be netted against the gains. Such a result is inappropriate because losses cannot be recognized in a Sec. 351 transaction.
COMPUTING GAIN WHEN SEVERAL ASSETS ARE TRANSFERRED. Revenue Ruling 68-55 adopts a separate properties approach for computing gain or loss when a shareholder transfers more than one asset to a corporation.27 Under this approach, the gain or loss realized and recognized is computed separately for each property transferred. The transferor is deemed to have received a proportionate share of stock, securities, and boot in exchange for each property transferred, based on the assets relative FMVs.
Joan transfers two assets to newly formed North Corporation in a transaction qualifying in part for tax-free treatment under Sec. 351. The total FMV of the assets is $100,000. The consideration
EXAMPLE C:2-25
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Sec. 351(b). Section 1239 also may require some gain to be characterized as ordinary income. Section 1250 ordinary depreciation recapture will not apply to real property placed in service after 1986 because MACRS mandates straight-line depreciation.
25
24
26 27
Secs. 1245(b)(3) and 1250(c)(3). 1968-1 C.B. 140, as amplified by Rev. Rul. 85-164, 1985-2 C.B. 117.
2-18 Corporations Chapter 2 received by Joan consists of $90,000 of North stock and $10,000 of North notes. The following data illustrate how Joan determines her realized and recognized gain under the procedure set forth in Rev. Rul. 68-55. Asset 1 Assets FMV Percent of total FMV Consideration received in exchange for asset: Stock (Stock percent of total FMV) Notes (Notes percent of total FMV) Total proceeds Minus: Adjusted basis Realized gain (loss) Boot received Recognized gain (loss) $40,000 40% $36,000 4,000 $40,000 (65,000) ($25,000) $ 4,000 None Asset 2 $60,000 60% $54,000 6,000 $60,000 (25,000) $35,000 $ 6,000 $ 6,000 Total $100,000 100% $ 90,000 10,000 $100,000 (90,000) $ 10,000 $ 10,000 $ 6,000
Under the separate properties approach, the loss realized on the transfer of Asset 1 does not offset the gain realized on the transfer of Asset 2. Therefore, Joan recognizes $6,000 of the total $10,000 realized gain, even though she receives $10,000 of boot. Joans selling Asset 1 to North so as to recognize the loss might be advisable. However, the Sec. 267 loss limitation rules may apply to Joan if she is a controlling shareholder (see pages C:2-34 and C:2-35).
COMPUTING A SHAREHOLDERS BASIS. Boot Property. A transferors basis in any boot property received is the propertys FMV.28 Stock. A shareholder computes his or her adjusted basis in stock received in a Sec. 351 exchange as follows:29
Adjusted basis of property transferred to the corporation Plus: Any gain recognized by the transferor Minus: FMV of boot received from the corporation Money received from the corporation Liabilities assumed by the corporation Adjusted basis of stock received EXAMPLE C:2-26
ADDITIONAL COMMENT
Because Sec. 351 is a deferral provision, any unrecognized gain must be reflected in the basis of the stock received by the transferor shareholder and is accomplished by substituting the transferors basis in the property given up for the basis of the stock received. This substituted basis may be further adjusted by gain recognized and boot received.
Bob transfers a capital asset having a $50,000 adjusted basis and an $80,000 FMV to South Corporation. He acquired the property two years earlier. Bob receives all 100 shares of South stock, having a $70,000 FMV, plus a $10,000 90-day South note (boot property). Bob realizes a $30,000 gain on the exchange, computed as follows: FMV of stock received Plus: FMV of 90-day note Amount realized Minus: Adjusted basis of property transferred Realized gain $70,000 10,000 $80,000 (50,000) $30,000
SELF-STUDY QUESTION
What is an alternative method for determining the basis of the assets received by the transferor shareholder? How is this method applied to Bob in Example C:2-26?
Bobs recognized gain is $10,000, i.e.,the lesser of the $30,000 realized gain or the $10,000 FMV of the boot property. This gain is long-term and capital in character. The Sec. 351 rules effectively require Bob to defer $20,000 ($30,000 $10,000) of his realized gain. Bobs basis in the South stock is $50,000, computed as follows: Adjusted basis of property transferred Plus: Gain recognized by Bob Minus: FMV of boot received Adjusted basis of Bobs stock $50,000 10,000 (10,000) $50,000
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28
Sec. 358(a)(2).
29
Sec. 358(a)(1).
If a transferor receives more than one class of qualified stock, his or her basis must be allocated among the classes of stock according to their relative FMVs.30
EXAMPLE C:2-27 Assume the same facts as in Example C:2-26 except Bob receives 100 shares of South common stock with a $45,000 FMV, 50 shares of South qualified preferred stock with a $25,000 FMV, and a 90-day South note with a $10,000 FMV. The total adjusted basis of the stock is $50,000 ($50,000 basis of property transferred $10,000 gain recognized $10,000 FMV of boot received). This basis must be allocated between the common and qualified preferred stock according to their relative FMVs, as follows: Basis of common stock $45,000 $45,000 $25,000 $25,000 $45,000 $25,000 $50,000 $32,143
ANSWER
The basis of all boot property is its FMV, and the basis of stock received is the stocks FMV minus any deferred gain or plus any deferred loss. Bobs stock basis under the alternative method is $50,000 ($70,000 FMV of stock $20,000 deferred gain).
Basis of preferred stock
$50,000
$17,857
Bobs basis in the note is its $10,000 FMV.
TRANSFERORS HOLDING PERIOD. The transferors holding period for any stock received in exchange for a capital asset or Sec. 1231 property includes the holding period of the property transferred.31 If the transferor exchanged any other kind of property (e.g., inventory) for the stock, the transferors holding period for the stock begins on the day after the exchange. Likewise, the holding period for boot property begins on the day after the exchange.
EXAMPLE C:2-28 Assume the same facts as in Example C:2-26. Bobs holding period for the stock includes the holding period of the capital asset transferred. His holding period for the note starts on the day after the exchange.
STOP & THINK Question: The holding period for stock received in exchange for a capital asset or Sec.
1231 property includes the holding period of the transferred item. The holding period for inventory or other assets begins on the day after the exchange. Why the difference? Solution: Because stock received in a Sec. 351 exchange represents a continuity of interest in the property transferred, logically the stock should not only be valued and characterized in the same manner as the asset exchanged for the equity claim, but also accorded the same tax attributes. Because the holding period of a capital asset is relevant in determining the character of gain or loss realized (i.e., long-term or short-term) on the asset's subsequent sale, stock received in a tax-free exchange of the asset should be accorded the same holding period for the purpose of determining the character of gain or loss realized on the stock's subsequent sale. By the same token, because the holding period of a noncapital asset is less relevant in determining the character of gain or loss realized on the asset's subsequent sale, stock received in a tax-free exchange of the asset need not be accorded the same holding period for the purpose of determining the character of gain or loss realized on the stock's subsequent sale. Given the very nature of a noncapital asset, this gain or loss generally is ordinary in character, in any event. Moreover, if stock received in exchange for a noncapital asset were accorded a holding period that includes that of the transferred property, a transferor could sell the stock in a short time to realize a long-term capital gain, thereby converting ordinary income (potentially from the sale of the noncapital asset) into capital gain from the sale of stock. Topic Review C:2-2 summarizes the tax consequences of a Sec. 351 exchange to the transferor(s) and the transferee corporation.
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30
31
Sec. 358(b)(1) and Reg. Sec. 1.358-2(b)(2). Sec. 1223(1). Revenue Ruling 85-164 (1985-2 C.B. 117) provides that a single share of stock may have two holding periods: a carryover holding period for the portion of such share received in exchange for a capital asset or
Sec. 1231 property and a holding period that begins on the day after the exchange for the portion of such share received for inventory or other property. The split holding period is relevant only if the transferor sells the stock received within one year of the transfer date.
Topic Review C:2-2
Ta x C o n s e q u e n c e s o f a S e c . 3 5 1 E x c h a n g e
To Transferor(s): 1. Transferors recognize no gain or loss when they exchange property for stock. Exception: A transferor recognizes gain equal to the lesser of the realized gain or the sum of any money received plus the FMV of any non-cash property received. The character of the gain depends on the type of property transferred. 2. The basis of the stock received equals the adjusted basis of the property transferred plus any gain recognized by the transferor minus the FMV of any boot property received minus any money received (including liabilities assumed or acquired by the transferee corporation). 3. The holding period of stock received in exchange for capital assets or Sec. 1231 property includes the holding period of the transferred property. The holding period of stock received in exchange for any other property begins on the day after the exchange. To Transferee Corporation: 1. A corporation recognizes no gain or loss when it exchanges its own stock for property or services. 2. The corporations basis in property received is the transferors basis plus any gain recognized by the transferor. However, if the total adjusted basis of all transferred property exceeds the total FMV of the property, the total basis to the transferee is limited to the propertys total FMV. 3. The corporations holding period for property received includes the transferors holding period.
ADDITIONAL COMMENT
The nonrecognition rule for corporations that issue stock for property applies whether or not the transaction qualifies the transferor shareholder for Sec. 351 treatment.
TA X C O N S E Q U E N C E S T O T R A N S F E R E E C O R P O R AT I O N A corporation that issues stock or debt for property or services is subject to various IRC rules for determining the tax consequences of that exchange.
GAIN OR LOSS RECOGNIZED BY THE TRANSFEREE CORPORATION. Corporations recognize no gain or loss when they issue their own stock in exchange for property or services.32 This result ensues whether or not Sec. 351 governs the exchange and whether or not the corporation issues new stock or treasury stock.
West Corporation pays $10,000 to acquire 100 shares of its own stock from existing shareholders. The next year, West reissues these 100 treasury shares for land having a $15,000 FMV. West realizes a $5,000 ($15,000 $10,000) gain on the exchange but recognizes none of this gain.
EXAMPLE C:2-29
Corporations also recognize no gain or loss when they exchange their own debt instruments for property or services. On the other hand, a corporation recognizes gain (but not loss) if it transfers appreciated property to a transferor as part of a Sec. 351 exchange. The amount and character of the gain are determined as though the property had been sold by the corporation immediately before the transfer.
EXAMPLE C:2-30 Alice, who owns 100% of Ace Corporation stock, transfers to Ace land having a $100,000 FMV and a $60,000 adjusted basis. In exchange, Alice receives 75 additional shares of Ace common stock having a $75,000 FMV, and Zero Corporation common stock having a $25,000 FMV. Aces basis in the Zero stock, a capital asset, is $10,000. Alice realizes a $40,000 gain [($75,000 $25,000) $60,000] on the land transfer, of which she recognizes $25,000 (i.e., the FMV of the boot property received). In addition, Ace recognizes a $15,000 capital gain ($25,000 $10,000) upon transferring the Zero stock to Alice.
TRANSFEREE CORPORATIONS BASIS FOR PROPERTY RECEIVED. A corporation that acquires property in exhange for its stock in a transaction that is taxable to the transferor takes a current cost (i.e., its FMV) basis in the property. On the other hand, if
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32
Sec. 1032.

ADDITIONAL COMMENT
If a shareholder transfers built-in gain property in a Sec. 351 transaction, the built-in gain actually is duplicated. This duplication occurs because the transferee corporation assumes the potential gain through its carryover basis in the assets it receives, and the transferor shareholder assumes the potential gain through its substituted basis in the transferee corporation stock. A similar duplication occurs for built-in loss property. This result reflects the double taxation characteristic of C corporations.
the exchange qualifies for nonrecognition treatment under Sec. 351 and is wholly or partially tax-free to the transferor, the corporations basis in the property is computed as follows:33 Transferors adjusted basis in property transferred to the corporation Plus: Gain (if any) recognized by transferor Minus: Reduction for loss property (if applicable) Transferee corporations basis in property The transferee corporations holding period for property acquired in a transaction satisfying the Sec. 351 requirements includes the period during which the property was held by the transferor.34 This general rule applies to all types of property without regard to their character in the transferors hands or the amount of gain recognized by the transferor. However, if the corporation reduces a propertys basis to its FMV under the loss property limitation rule discussed below, the holding period will begin the day after the exchange date because no part of the new basis references the transferors basis.
Top Corporation issues 100 shares of its stock for land having a $15,000 FMV. Tina, who transferred the land, had a $12,000 basis in the property. If the exchange satisfies the Sec. 351 requirements, Tina recognizes no gain on the exchange. Tops basis in the land is $12,000, the same as Tinas. Tops holding period includes Tinas holding period. However, if the exchange does not satisfy the Sec. 351 requirements, Tina recognizes $3,000 of gain. Tops basis in the land is its $15,000 acquisition cost, and its holding period begins on the day after the exchange date.
EXAMPLE C:2-31
REDUCTION FOR LOSS PROPERTY. Section 362(e)(2) prevents shareholders from generating double losses by transferring loss property to a corporation. The double loss potential exists because the corporation would hold property with a built-in loss, and the shareholders would hold stock with a built-in loss. Accordingly, if a corporations total adjusted basis (including any increase for gain recognized by the shareholder) for all properties transferred by the shareholder exceeds the properties total FMV, the basis to the corporation of the properties must be reduced by this excess. The reduction in basis is allocated among the properties in proportion to their respective built-in losses. The limitation applies on a shareholder-by-shareholder basis. In other words, the property values and built-in losses of all shareholders are not aggregated.
EXAMPLE C:2-32 John transfers the following assets to Pecan Corporation in exchange for all of Pecans stock worth $26,000. Assets Inventory Equipment Furniture Total Adjusted Basis to John $ 5,000 15,000 9,000 $29,000 FMV $ 8,000 11,000 7,000 $26,000
Although the transaction meets the requirements of Sec. 351, the total basis of the assets transferred ($29,000) exceeds their total FMV. Consequently, the total basis to Pecan is limited to the assets FMV ($26,000). The $3,000 ($29,000 $26,000) reduction in basis must be allocated among the assets in proportion to their respective built-in losses as follows: Assets
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Built-in Losses $4,000 2,000 $6,000
Allocated Reduction $2,000 1,000 $3,000
Equipment Furniture Total
33
Sec. 362.
34
Sec. 1223(2).
2-22 Corporations Chapter 2 Thus, Pecans bases for the assets transferred by John are: Inventory Equipment ($15,000 $2,000) Furniture ($9,000 $1,000) Total $ 5,000 13,000 8,000 $26,000
Because each propertys basis was not reduced to the propertys FMV, the holding period of each property includes the transferors holding period.
A corporation subject to the basis reduction rules described above can avoid this result if the corporation and all its shareholders so elect. Under the election, the corporation need not reduce the bases of the assets received, but the affected shareholders basis in stock received for the property is reduced by the amount by which the corporation would have reduced its basis absent the election.
EXAMPLE C:2-33 Assume the same facts as in Example C:2-32 except John and Pecan elect not to reduce the bases of the assets Pecan received. Under the election, Johns basis in his Pecan stock is reduced to $26,000 ($29,000 $3,000).
A corporation and its shareholders can avoid the basis reduction rules altogether if each shareholder transfers enough appreciated property to offset any built-in losses of other property transferred. This avoidance opportunity exists because in making the comparison, each shareholder aggregates the adjusted bases and FMVs of his or her property transferred.
EXAMPLE C:2-34 Assume the same facts as in Example C:2-32 except the inventorys FMV is $12,000. In this case, total basis equals $29,000 and total FMV equals $30,000. Because total basis does not exceed total FMV, the limitation does not apply. Consequently, the corporation takes a carryover basis in each asset even though some assets have built-in losses.
ASSUMPTION OF THE TRANSFERORS LIABILITIES When a shareholder transfers property to a controlled corporation, the corporation often assumes the transferors liabilities. The question arises as to whether the transferee corporations assumption of liabilities is equivalent to a cash (boot) payment to the transferor. In certain types of transactions, the transferees assumption of a transferors liability is treated as a payment of cash to the transferor. For example, in a like-kind exchange, if a transferee assumes a transferors liability, the transferor is treated as though he or she received a cash payment equal to the amount of the liability assumed. By contrast, if a transaction satisfies the Sec. 351 requirements, Sec. 357 provides relief from such treatment.
GENERAL RULESEC. 357(a). For the purpose of determining gain recognition, the transferee corporations assumption of liabilities in a property transfer qualifying under Sec. 351 is not considered equivalent to the transferors receipt of money. Consequently, the transferee corporations assumption of liabilities does not result in the transferors recognizing part or all of his or her realized gain. For the purpose of calculating the transferors stock basis, however, the transferee corporations assumption of liabilities is treated as money received and thus decreases the transferors stock basis. Moreover, for the purpose of calculating the transferors realized gain, the transferee corporations assumption of liabilities is treated as part of the transferors amount realized.35
EXAMPLE C:2-35 Roy and Eduardo transfer the following assets and liabilities to newly formed Palm Corporation:
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35
Sec. 358(d)(1).
Corporate Formations and Capital Structure Corporations 2-23 Asset/ Liability Machinery Mortgage Cash Transferors Adj. Basis $15,000 8,000 24,000 Consideration Received 50 shares Palm stock Assumed by Palm 50 shares Palm stock
Transferor Roy Eduardo
FMV $32,000 24,000
The transaction meets the requirements of Sec. 351. Roys recognized gain is determined as follows: FMV of stock received Plus: Palms assumption of the mortgage liability Amount realized Minus: Basis of machinery Realized gain Boot received Recognized gain $24,000 8,000 $32,000 (15,000) $17,000 $ $ 0 0
Although Palms assumption of the mortgage liability increases Roys amount realized, Roy recognizes none of his realized gain because the mortgage assumption is not considered to be boot (i.e., a cash equivalent). Eduardo recognizes no gain because he transferred only cash. Roys stock basis is $7,000 ($15,000 basis of property transferred $8,000 liability assumed by Palm). Eduardos stock basis is $24,000.
ADDITIONAL COMMENT
If any of the assumed liabilities are created for tax avoidance purposes, all the assumed liabilities are tainted.
The general rule of Sec. 357(a), however, has two exceptions. These exceptions, discussed below, relate to (1) transfers for the purpose of tax avoidance or without a bona fide business purpose and (2) transfers where the liabilities assumed by the corporation exceed the total basis of the property transferred. TAX AVOIDANCE OR NO BONA FIDE BUSINESS PURPOSESEC. 357(b). All liabilities assumed by a controlled corporation are considered to be money received by the transferor, and therefore boot, if the principal purpose of the transfer of any portion of such liabilities is tax avoidance or if the liability transfer has no bona fide business purpose. Liabilities the transfer of which might be considered to be motivated principally by tax avoidance are those the transferor incurred shortly before the transfer. Thus, the most important factor in determining whether a tax avoidance purpose exists may be the length of time between the incurrence of the liability and its transfer to, or assumption by, the corporation. The assumption of liabilities normally is considered to have a business purpose if the transferor incurred the liabilities in the normal course of business or in the course of acquiring business property. Examples of liabilities without a bona fide business purpose and whose transfer would cause all liabilities transferred to be considered boot are personal obligations of the transferor, including a home mortgage or any other loans of a personal nature.
David owns land having a $100,000 FMV and a $60,000 adjusted basis. The land is not encumbered by any liabilities. To obtain cash for his personal use, David transfers the land to his wholly owned corporation in exchange for additional stock and $25,000 cash. Because the cash is considered to be boot, David must recognize $25,000 of gain. Assume instead that David mortgages the land for $25,000 to obtain the needed cash. If shortly thereafter David transfers the land and the mortgage to his corporation for additional stock, the $25,000 mortgage assumed by the corporation will be considered to be boot because the transfer of the mortgage appears to have no bona fide business purpose. Davids recognized gain will be $25,000, i.e., the lesser of the boot received ($25,000) or his realized gain ($40,000). This special liability rule prevents David from obtaining cash without boot recognition.
ETHICAL POINT
Information about any transferor liabilities assumed by the transferee corporation must be reported with the transferee and transferors tax returns for the year of transfer (see page C:2-36). Where a client asks a tax practitioner to ignore the fact that tax avoidance is the primary purpose for transferring a liability to a corporation, the tax practitioner must examine the ethical considerations of continuing to prepare returns and provide tax advice for the client.
EXAMPLE C:2-36
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LIABILITIES IN EXCESS OF BASISSEC. 357(c). Under Sec. 357(c), if the total amount of liabilities transferred to a controlled corporation exceeds the total adjusted basis of all property transferred, the excess liability is taxed as a gain to the transferor.
This rule applies regardless of whether the transferor realizes any gain or loss. The rationale for the rule is that the transferor has received a benefit (in the form of a release from liabilities) that exceeds his or her original investment in the transferred property. Therefore, the transferor should be taxed on this benefit. The character of the recognized gain depends on the type of property transferred to the corporation. The transferors basis in any stock received is zero.
EXAMPLE C:2-37 Judy transfers $10,000 cash and land, a capital asset, to Duke Corporation in exchange for all its stock. At the time of the exchange, the land has a $70,000 adjusted basis and a $125,000 FMV. Duke assumes a $100,000 mortgage on the land for a bona fide business purpose. Although Judy receives no boot, Judy must recognize a $20,000 ($100,000 $80,000) capital gain, the amount by which the liabilities assumed by Duke exceed the basis of the land and the cash. Judys basis in the Duke stock is zero, computed as follows: Judys basis in the land transferred Plus: Cash transferred Gain recognized Minus: Liabilities assumed by Duke Judys basis in the Duke stock $ 70,000 10,000 20,000 (100,000) $ 0
Note that, without the recogniton of the $20,000 gain, Judys basis in the Duke stock would be a negative $20,000 ($80,000 $100,000).
STOP & THINK Question: What are the fundamental differences between the liability exceptions of Sec.
357(b) and Sec. 357(c)? Solution: Section 357(b) treats all tainted liabilities as boot so that gain recognition is the lesser of gain realized or the amount of boot. Excess liabilities under Sec. 357(c) are not treated as boot; they require gain recognition whether or not the transferor realizes any gain. Section 357(b) tends to be punitive in that the tax avoidance liabilities cause all the offending shareholders transferred liabilities to be treated as boot even if the transfer of some liabilities do not have a tax avoidance purpose. Section 357(c) is not intended to be punitive. It recognizes that the shareholder has received an economic benefit to the extent of excess liabilities, and it prevents the occurrence of a negative stock basis. In short, Section 357(b) deters or punishes tax avoidance while Sec. 357(c) taxes an economic gain.
KEY POINT
Because of the liabilities in excess of basis exception, many cash basis transferor shareholders might inadvertently create recognized gain in a Sec. 351 transaction. However, a special exception exists that protects cash basis taxpayers. This exception provides that liabilities that would give rise to a deduction when paid are not treated as liabilities for purposes of Sec. 357(c).
LIABILITIES OF A CASH METHOD TAXPAYERSEC. 357(c)(3). In a Sec. 351 taxfree exchange, special problems arise when a taxpayer using the cash or hybrid method of accounting transfers property and liabilities of an ongoing business to a corporation.36 Often, the principal assets transferred are accounts receivable having a zero basis. Liabilities usually are transferred as well. Consequently, the amount of liabilities transferred may exceed the total basis (but not the FMV) of the property transferred. Under the general rule of Sec. 357(c), the transferor recognizes gain equal to the amount by which the liabilities assumed exceed the total basis of the property transferred. Section 357(c)(3), however, provides that, in applying the general rule, the term liabilities does not include any amount that would give rise to a deduction when paid (e.g., accounts payable of a cash basis taxpayer). These amounts also are not considered liabilities for the purpose of determining the shareholders basis in stock received.37 Therefore, they generally do not reduce this basis. However, if after all other adjustments the stocks basis exceeds its FMV, these liabilities could reduce stock basis, but not below the stocks FMV.38
Tracy operates a cash basis accounting practice as a sole proprietorship. She transfers the assets of her practice to Prime Corporation in exchange for all the Prime stock. The balance sheet for the transferred practice is as follows:
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EXAMPLE C:2-38
36 37
Sec. 357(c)(3). Sec. 358(d)(2).
38
Sec. 358(h)(1).
Corporate Formations and Capital Structure Corporations 2-25 Assets and Liabilities Cash Furniture Accounts receivable Total Accounts payable (deductible expenses) Note payable (on office furniture) Owners equity Total Adjusted Basis $ 5,000 5,000 0 $10,000 $ 0 2,000 8,000 FMV $ 5,000 8,000 50,000 $63,000 $25,000 2,000 36,000 $63,000
$10,000
If, for purposes of Sec. 357(c), the accounts payable were considered liabilities, the $27,000 of liabilities transferred (i.e., the $25,000 of accounts payable and the $2,000 note payable) would exceed the $10,000 total basis of assets transferred, and Troy would recognize a $17,000 gain. Because paying the $25,000 of accounts payable gives rise to a deduction, however, they are not considered liabilities for purposes of Sec. 357(c). On the other hand, the $2,000 note payable is considered a liability for this purpose because paying it would not give rise to a deduction. Thus, the total liabilities transferred to Prime amount to only $2,000. Because that amount does not exceed the $10,000 total basis of the assets transferred, Tracy recognizes no gain. Moreover, the accounts payable are not considered liabilities for purposes of computing Tracys basis in her stock because the stocks basis ($8,000) does not exceed its FMV ($36,000). Thus, her basis in the Prime stock is $8,000 ($10,000 $2,000).
Topic Review C:2-3 summarizes the liability assumption and acquisition rules of Sec. 357.
O T H E R C O N S I D E R AT I O N S I N A S E C . 3 5 1 EXCHANGE RECAPTURE OF DEPRECIATION. If a Sec. 351 exchange is completely nontaxable (i.e., the transferor receives no boot), no depreciation is recaptured. Instead, the corporation inherits the entire amount of the transferors recapture potential. Where the transferor recognizes some depreciation recapture as ordinary income (e.g., because of boot recognition), the transferee inherits the remaining recapture potential. If the transferee corporation subsequently disposes of the depreciated property, the corporation is subject to recapture rules on depreciation it claimed subsequent to the transfer, plus the recapture potential it inherited from the transferor.
EXAMPLE C:2-39 Azeem transfers machinery having a $25,000 original cost, an $18,000 adjusted basis, and a $35,000 FMV for all 100 shares of Wheel Corporation stock. Before the transfer, Azeem used the machinery in his business and claimed $7,000 of depreciation. In the transfer, Azeem recaptures no depreciation, and Wheel inherits the $7,000 recapture potential. After claiming an additional $2,000 of depreciation, Wheel has a $16,000 adjusted basis in the machinery. If
Topic Review C:2-3
Liability Assumption and Acquisition Rules of Sec. 357

1. General Rule (Sec. 357(a)): A transferee corporations assumption of liabilities in a Sec. 351 exchange is not treated as boot by the shareholder for gain recognition purposes. On the other hand, the assumption of liabilities is treated as the receipt of money for purposes of determining the transferors stock basis and amount realized. 2. Exception 1 (Sec. 357(b)): All liabilities assumed by a transferee corporation are considered to be money/boot received by the transferor if the principal purpose of the transfer of any of the liabilities is tax avoidance or if no bona fide business purpose exists for the transfer. 3. Exception 2 (Sec. 357(c)): If the total amount of liabilities assumed by a transferee corporation exceeds the total basis of property transferred, the transferor recognizes the excess as gain. 4. Special Rule (Sec. 357(c)(3)): For purposes of Exception 2, the term liabilities for a transferor using a cash or hybrid method of accounting does not include any amount that would give rise to a deduction when paid.
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Wheel now sells the machinery for $33,000, it must recognize a $17,000 ($33,000 $16,000) gain. Of this gain, $9,000 is ordinary income recaptured under Sec. 1245. The remaining $8,000 is a Sec. 1231 gain.
COMPUTING DEPRECIATION. When a shareholder transfers depreciable property to a corporation in a nontaxable Sec. 351 exchange and the shareholder has not fully depreciated the property, the corporation must use the depreciation method and recovery period used by the transferor.39 For the year of the transfer, the depreciation must be allocated between the transferor and the transferee corporation according to the number of months each party held the property. The transferee corporation is assumed to have held the property for the entire month in which the property was transferred.40
EXAMPLE C:2-40 On June 10 of Year 1, Carla paid $6,000 for a computer (five-year property for MACRS purposes), which she used in her sole proprietorship business. In Year 1, she claimed $1,200 (0.20 $6,000) of depreciation. She did not elect Sec. 179 expensing and did not claim any bonus depreciation. On February 10 of Year 2, she transfers the computer and other sole proprietorship assets to King Corporation in exchange for King stock. Because Sec. 351 applies, she recognizes no gain or loss. King must use the same MACRS recovery period and method that Carla used. Depreciation for Year 2 is $1,920 (0.32 $6,000). That amount must be allocated between Carla and King. The computer is considered to have been held by Carla for one month and by King for 11 months (including the month of transfer). The Year 2 depreciation amounts claimed by Carla and King are calculated as follows: Carla King Corporation Kings basis in the computer is calculated as follows: Original cost Minus: Year 1 depreciation claimed by Carla Year 2 depreciation claimed by Carla Adjusted basis on transfer date Kings depreciation for Year 2 and subsequent years is as follows: Year 2 (as computed above) Year 3 ($6,000 0.1920) Year 4 ($6,000 0.1152) Year 5 ($6,000 0.1152) Year 6 ($6,000 0.0576) Total $1,760 1,152 691 691 346 $4,640 $6,000 (1,200) (160) $4,640 $6,000 $6,000 0.32 0.32 1/12 11/12 $ 160 $1,760
If the transferee corporations basis in the depreciable property exceeds the transferors basis (e.g., as a result of an upward adjustment to reflect gain recognized by the transferor), the corporation treats the excess amount as newly purchased MACRS property and uses the recovery period and method applicable to the class of property transferred.41
EXAMPLE C:2-41 Assume the same facts as in Example C:2-40 except that, in addition to King stock, Carla receives a King note. Consequently, she must recognize $1,000 of gain on the transfer of the computer. Kings basis in the computer is calculated as follows: Original cost Depreciation claimed by Carla Adjusted basis on transfer date Plus: Gain recognized by Carla Basis to King on transfer date $6,000 (1,360) $4,640 1,000 $5,640
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The additional $1,000 of basis is depreciated as though it were separate, newly purchased fiveyear MACRS property. Thus, King claims depreciation of $200 (0.20 $1,000) on this portion of
39 40
Sec. 168(i)(7). Prop. Reg. Secs. 1.168-5(b)(2)(i)(B), 1.168-5(b)(4)(i), and 1.168-5(b)(8).
41
Prop. Reg. Sec. 1.168-5(b)(7).

ADDITIONAL COMMENT
Currently, we have no clear guidance on how the corporation depreciates transferred property that has a reduced basis under the loss property limitation rule discussed on page C:2-21. For now, taxpayers probably should rely on Prop. Reg. 1.168-2(d)(3), which provides a method for calculating depreciation when the transferees basis is less than the transferors basis.
the basis in addition to the $1,760 of depreciation on the $4,640 carryover basis. Alternatively, King could elect to expense the $1,000 new basis under Sec. 179.
ASSIGNMENT OF INCOME DOCTRINE. The assignment of income doctrine holds that income is taxable to the person who earned it and that it may not be assigned to another person for tax purposes.42 The question arises as to whether the assignment of income doctrine applies where a cash method taxpayer transfers uncollected accounts receivable to a corporation in a Sec. 351 exchange. Specifically, who must recognize the income when it is collectedthe taxpayer who transferred the receivable or the corporation that now owns and collects on the receivable? The IRS has ruled that the doctrine does not apply in a Sec. 351 exchange if the taxpayer transfers substantially all the business assets and liabilities, and a bona fide business purpose exists for the transfer. Instead, the accounts receivable take a zero basis in the corporations hands, and the corporation includes their value in its income when it collects on the receivables.43
For a bona fide business purpose, Ruth, a cash basis taxpayer, transfers all the assets and liabilities of her legal practice to Legal Services Corporation in exchange for all of Legal Services stock. The assets include $30,000 of accounts receivable that will generate earnings that Ruth has not included in her gross income. Because Ruth transfers substantially all the business assets and liabilities for a bona fide business purpose, the assignment of income doctrine does not apply to the receivables transferred, and Legal Services takes a zero basis in the receivables. Subsequently, Legal Services includes the value of the receivables in its income as it collects on them.
EXAMPLE C:2-42
The question of whether a transferee corporation can deduct the accounts payable transferred to it in a nontaxable transfer has frequently been litigated.44 Most courts have held that ordinarily expenses are deductible only by the party that incurred those liabilities in the course of its trade or business. However, the IRS has ruled that in a nontaxable exchange the transferee corporation may deduct the payments it makes to satisfy the transferred accounts payable even though they arose in the transferors business.45
O F C A P I TA L STRUCTURE
OBJECTIVE
CH O I C E
Understand the tax implications of alternative capital structures
When a corporation is formed, the way it is financed will determine its capital structure. The corporation may obtain capital from shareholders, nonshareholders, and creditors. In exchange for their capital, shareholders may receive common or preferred stock; nonshareholders may receive benefits such as employment or special rates on products sold by the corporation; and creditors may receive long- or short-term debt. As explained below, each of these alternatives has tax advantages and disadvantages for the shareholders, creditors, and corporation.
C H A R A C T E R I Z AT I O N O F O B L I G AT I O N S AS DEBT OR EQUITY The deductibility of interest payments creates an incentive for corporations to incur as much debt as possible. Because debt financing often resembles equity financing (e.g., preferred stock), the IRS and the courts have refused to accept the form of the security as controlling.46 In some cases, debt obligations that possess equity characteristics have been treated as common or preferred stock for tax purposes. In determining the appropriate tax treatment, the courts have relied on a number of factors.
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42 See, for example, Lucas v. Guy C. Earl, 8 AFTR 10287, 2 USTC 496 (USSC, 1930). 43 Rev. Rul. 80-198, 1980-2 C.B. 113. 44 See, for example, Wilford E. Thatcher v. CIR, 37 AFTR 2d 76-1068, 76-1 USTC 9324 (9th Cir., 1976), and John P. Bongiovanni v. CIR, 31 AFTR 2d 73-409, 73-1 USTC 9133 (2nd Cir., 1972).
Rev. Rul. 80-198, 1980-2 C.B. 113. See, for example, Aqualane Shores, Inc. v. CIR, 4 AFTR 2d 5346, 59-2 USTC 9632 (5th Cir., 1959) and Sun Properties, Inc. v. U.S., 47 AFTR 273, 55-1 USTC 9261 (5th Cir., 1955).
46
45
HISTORICAL NOTE
The Treasury Department at one time issued proposed and final regulations covering Sec. 385. These regulations were the subject of so much criticism that the Treasury Department eventually withdrew them. Section 385, however, makes it clear that Congress wants the Treasury Department to make further attempts at clarifying the debtequity issue. So far, the Treasury Department has issued no new proposed or final regulations.
Congress enacted Sec. 385 to establish a workable standard for determining whether a security is debt or equity. Section 385 provides that the following factors be considered in the determination: Whether there is a written unconditional promise to pay on demand or on a specified date a certain sum of money in return for adequate consideration in the form of money or moneys worth, in addition to an unconditional promise to pay a fixed rate of interest Whether the debt is subordinate to, or preferred over, other indebtedness of the corporation The ratio of corporate debt to equity Whether the debt is convertible into stock of the corporation The relationship between holdings of stock in the corporation and holdings of the interest in question47
D E B T C A P I TA L Various provisions govern the tax treatment of (1) the issuance of debt; (2) the payment of interest on debt; and (3) the extinguishment, retirement, or worthlessness of debt. The tax implications of each of these events are examined below.
SELF-STUDY QUESTION
From a tax perspective, why is the distinction between debt and equity important?
ISSUANCE OF DEBT. If a transferor transfers appreciated property in exchange for stock, the transfer will be nontaxable, provided the Sec. 351 requirements have been met. On the other hand, if the transferor transfers appreciated property in exchange for corporate debt as part of a Sec. 351 exchange, the FMV of the debt received will be treated as boot, possibly leading to gain recognition. PAYMENT OF INTEREST. Interest paid on indebtedness is deductible by the corporation in deriving its taxable income.48 Moreover, a corporation is not subject to the investment interest deduction limitation applicable to individual taxpayers. By contrast, the corporation cannot deduct dividends paid on equity securities. If a corporation issues a debt instrument at a discount, Sec. 1272 requires the holder to amortize the original issue discount over the term of the obligation and treat the accrual as interest income. The debtor corporation amortizes the original issue discount over the term of the obligation and treats the accrual as an additional cost of borrowing.49 If the corporation repurchases the debt instrument for more than the issue price (plus any original issue discount deducted as interest), the corporation deducts the excess of the purchase price over the issue price (adjusted for any amortization of original issue discount) as interest expense.50 Under Sec. 171, if a corporation issues a debt instrument at a premium, the holder may elect to amortize the premium over the term of the obligation and treat the accrual as a reduction in interest income earned on the obligation. For the debtor corporation, the premium reduces the amount of deductible interest.51 If the corporation repurchases the debt instrument at a price greater than the issue price (minus any premium treated as income), the corporation deducts the excess of the purchase price over the issue price (adjusted for any amortization of premium) as interest expense.52 EXTINGUISHMENT OF DEBT. Generally, the retirement of debt is not a taxable event. Thus, a debtor corporations extinguishing an obligation at face value does not result in the creditors recognizing gain or loss. However, amounts received by the holder
ANSWER
Interest paid with respect to a debt instrument is deductible by the payor corporation. Dividends paid with respect to an equity instrument are not deductible by the payor corporation. Thus, the determination of whether an instrument is debt or equity can provide different results to the payor corporation. Different results apply to the payee as well. Qualified dividends are subject to the 15% maximum tax rate (through 2012) while interest is ordinary income.
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47 See also O.H. Kruse Grain & Milling v. CIR, 5 AFTR 2d 1544, 60-2 USTC 9490 (9th Cir., 1960), which lists additional factors that the courts might consider. 48 Sec. 163(a).
49 50
Sec. 163(e). Reg. Sec. 1.163-7(c). 51 Reg. Sec. 1.163-12. 52 Reg. Sec. 1.163-7(c).
of a debt instrument (e.g., note, bond, or debenture) at the time of its retirement are deemed to be in exchange for the obligation. Thus, if the obligation is a capital asset in the holders hands, the holder must recognize a capital gain or loss if the amount received differs from its face value or adjusted basis, unless the difference is due to original issue or market discount.
EXAMPLE C:2-43
ADDITIONAL COMMENT
Even though debt often is thought of as a preferred instrument because of the deductibility of the interest paid, the debt must be repaid at its maturity, whereas stock has no specified maturity date. Also, interest usually must be paid at regular intervals, whereas dividends do not have to be declared if sufficient funds are not available to pay them or if the corporation needs to retain funds for operations or growth.
Titan Corporation issues a ten-year note at its $1,000 face amount. On the date of issuance, Rick purchases the note for $1,000. Because of a decline in interest rates, Titan calls the note at a price of $1,050 payable to each note holder. Rick reports the premium as a $50 capital gain, and Titan deducts as interest expense total premiums paid to all its note holders.
Table C:2-2 presents a comparison of the tax advantages and disadvantages of a corporations using debt in its capital structure.
SELF-STUDY QUESTION
Does the transferee corporation recognize gain on the receipt of appreciated property from a shareholder?
E Q U I T Y C A P I TA L Corporations can raise equity capital through the issuance of various types of stock. Some corporations issue only a single class of stock, whereas others issue numerous classes of stock. Reasons for the use of multiple classes of stock include Permitting nonfamily employees of family owned corporations to obtain an equity interest in the business while keeping voting control in the hands of family members Financing a closely held corporation through the issuance of preferred stock to an outside investor, while leaving voting control in the hands of existing common stockholders. Table C:2-3 lists some of the major tax advantages and disadvantages of using common and preferred stock in a corporations capital structure. C A P I TA L C O N T R I B U T I O N S B Y S H A R E H O L D E R S A corporation recognizes no income when it receives money or noncash property as a capital contribution from a shareholder.53 If the shareholders make voluntary pro rata payments to a corporation but do not receive any additional stock, the payments are treated as additional consideration for the stock already owned.54 The shareholders respective bases in their stock are increased by the amount of money contributed, plus the basis of any noncash property contributed, plus any gain recognized by the shareholders. The
ANSWER
No. A corporation does not recognize gain when it receives property from its shareholders, whether or not it exchanges its own stock. However, the transfer must qualify as a Sec. 351 exchange or the transaction will be taxable to the shareholders.
TABLE C:2-2
Tax Advantages and Disadvantages of Using Debt in a Corporations Capital Structure

Advantages: 1. A corporation can deduct interest paid on a debt obligation. 2. Shareholders do not recognize income in a debt retirement as they would in a stock redemption. Disadvantages: 1. If at the time the corporation is formed or later when a shareholder makes a capital contribution, the shareholder receives a debt instrument in exchange for property, the debt is treated as boot, and the shareholder recognizes gain to the extent of the lesser of the boots FMV or the realized gain. 2. If debt becomes worthless or is sold at less than its face value, the loss generally is a nonbusiness bad debt (treated as a short-term capital loss) or a capital loss. Section 1244 ordinary loss treatment applies only to stock (see pages C:2-32 and C:2-33).
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53
Sec. 118(a).
54
Reg. Sec. 1.118-1.
Tax Advantages and Disadvantages of Using Equity in a Corporations Capital Structure

Advantages: 1. A 70%, 80%, or 100% dividends-received deduction is available to a corporate shareholder who receives dividends. A similar deduction is not available for the receipt of interest (see Chapter C:3). 2. A shareholder can receive common and preferred stock in a tax-free corporate formation under Sec. 351 or a nontaxable reorganization under Sec. 368 without recognizing gain (see Chapters C:2 and C:7, respectively). Receipt of debt securities in each of these two types of transactions generally results in the shareholders recognizing gain. 3. Common and preferred stock can be distributed tax-free to the corporations shareholders as a stock dividend. Some common and preferred stock distributions, however, may be taxable as dividends under Sec. 305(b). Distributions of debt obligations generally are taxable as a dividend (see Chapter C:4). 4. Common or preferred stock that the shareholder sells or exchanges or that becomes worthless is eligible for ordinary loss treatment, subject to limitations, under Sec. 1244 (see pages C:2-32 and C:2-33). The loss recognized on similar transactions involving debt securities generally is treated as capital in character. 5. Section 1202 excludes 50% of capital gains realized on the sale or exchange of qualified small business (C) corporation stock that has been held for more than five years. For qualified stock acquired after February 17, 2009 and before September 28, 2010, the exclusion is 75%, and for qualified stock acquired after September 27, 2010 and before January 1, 2012, the exclusion is 100%. 6. Through 2012, qualified dividends are taxed at a maximum 15% tax rate. Disadvantages: 1. Dividends are not deductible in determining a corporations taxable income. 2. Redemption of common or preferred stock generally is taxable to the shareholders as a dividend. Under the general rule, none of the redemption distribution offsets the shareholders basis for the stock investment. Redemption of common and preferred stock is eligible for exchange treatment only in situations specified in Secs. 302 and 303 (see Chapter C:4). 3. Preferred stock issued to a shareholder as a dividend may be treated as Sec. 306 stock. Sale, exchange, or redemption of such stock can result in the recognition of ordinary income instead of capital gain (see Chapter C:4). Through 2012, this ordinary income is taxed as a deemed dividend at 15%.
The characteristics of preferred stock can be similar to those of a debt security. Often, a regular dividend is required at a stated rate, much like what would be required with respect to a debt obligation. The holder of preferred stock, like a debt holder, may have preferred liquidation rights over holders of common stock. Also, preferred stock is not required to possess voting rights. However, differences remain. A corporation can deduct its interest expense but not dividends. Interest income is ordinary income to shareholders, but qualified dividends are subject to the 15% maximum tax rate (through 2012).
corporations basis in any property received as a capital contribution from a shareholder equals the shareholders basis, plus any gain recognized by the shareholder.55 Normally, the shareholders recognize no gain when they transfer property to a controlled corporation as a capital contribution.
EXAMPLE C:2-44 Dot and Fred each own 50% of the stock in Trail Corporation, and each has a $50,000 basis in that stock. Later, as a voluntary contribution to Trails capital, Dot contributes $40,000 in cash and Fred contributes property having a $25,000 basis and a $40,000 FMV. As a result of the contributions, Trail recognizes no income. Dots basis in her stock is increased to $90,000 ($50,000 $40,000), and Freds basis in his stock is increased to $75,000 ($50,000 $25,000). Trails basis in the property contributed by Fred is $25,000the same as Freds basis in the property.
If a shareholder-lender gratuitously forgives corporate debt, the debt forgiveness might be treated as a capital contribution equal to the principal amount of the forgiven debt. A determination of whether debt forgiveness is a capital contribution is based on the facts and circumstances surrounding the event.
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55
Sec. 362(a).
WH AT
common stock would be nondeductible. You are concerned that the IRS might treat the bonds as equity because of their extraordinarily long term. If the IRS does treat the bonds as such, it might recharacterize the interest as dividends and deny your client an interest deduction. What advice would you give the client now regarding the bond issue? What advice would you give it when it prepares its tax return after the new bonds have been issued?
Your corporate client wants to issue 100-year bonds. The corporations CEO reads The Wall Street Journal regularly and has observed that similar bonds have been issued by several companies, including several Fortune 500 companies. He touts the fact that the interest rate on these bonds is slightly more than that for 30-year U.S. Treasury bonds. In addition, he expresses the belief that interest on the bonds would be deductible, whereas dividends on preferred or
BOOK-TO-TAX ACCOUNTING COMPARISON

The IRC requires capital contributions of property other than money made by a nonshareholder to be reported at a zero basis. Financial accounting rules, however, require donated capital to be reported at the FMV of the asset on the financial accounting books. Neither set of rules requires the propertys value to be included in income.
C A P I TA L C O N T R I B U T I O N S B Y NONSHAREHOLDERS Nonshareholders sometimes contribute capital to a corporation in the form of money or other property. For example, a city government might contribute land to a corporation to induce the corporation to locate within the city and provide jobs for citizens of the municipality. Such contributions are excluded from the corporations gross income if the money or property contributed is neither a payment for goods or services nor a subsidy to induce the corporation to limit production.56 If a nonshareholder contributes noncash property to a corporation, the corporations basis in such property is zero.57 The zero basis precludes the corporation from claiming either a depreciation deduction or capital recovery offset with respect to the contributed property. If a nonshareholder contributes money, the basis of any property acquired with the money during a 12-month period beginning on the day the corporation received the contribution is reduced by the amount of the money. This rule limits the corporations deduction to the amount of funds it invested in the property. The amount of any money received from nonshareholders that the corporation did not spend to purchase property during the 12-month period reduces the basis of any noncash property held by the corporation on the last day of the 12-month period.58 The basis reduction applies to the corporations property in the following order:
1. 2. 3. 4. Depreciable property Amortizable property Depletable property All other property
In the sequence of these downward adjustments, however, a propertys basis may not be reduced below zero.
EXAMPLE C:2-45 To induce the company to locate in the municipality, the City of San Antonio contributes to Circle Corporation $100,000 in cash and a tract of land having a $500,000 FMV. Because of a downturn in Circles business, the company spends only $70,000 of the contributed funds over a 12-month period. Circle recognizes no income as a result of the contribution. Circles bases in the land and other property purchased with the contributed funds are zero. The basis of Circles remaining assets, starting with its depreciable property, must be reduced by the $30,000 ($100,000 $70,000) contributed but not spent.
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56 57
Reg. Sec. 1.118-1. Sec. 362(c)(1).
58
Sec. 362(c)(2).
OF STOCK O R D E B T O B L I G AT I O N S
OBJECTIVE
WO RT H L E S S N E S S
Determine the tax consequences of worthless stock or debt obligations
Investors who purchase stock in, or lend money to, a corporation usually want to earn a profit and recover their investment. Some investments, however, do not offer an adequate return on capital, and an investor may lose part or all of the investment. In this event, the securities evidencing the investment become worthless. This section examines the tax consequences of stock or debt securities becoming worthless.
Probably the most difficult aspect of deducting a loss on a worthless security is establishing that the security is actually worthless. A mere decline in value is not sufficient to create a loss. The burden of proof of establishing total worthlessness rests with the taxpayer.
SELF-STUDY QUESTION
Why would a shareholder want his or her stock to qualify as Sec. 1244 stock?
ANSWER
Section 1244 is a provision that may help the taxpayer but that can never hurt. If the Sec. 1244 requirements are satisfied, the individual shareholders of a small business corporation may treat losses from the sale or worthlessness of their stock as ordinary rather than capital losses. If the Sec. 1244 requirements are not satisfied, such losses generally are capital losses.
SECURITIES A debt or equity security that becomes worthless results in a capital loss for the investor as of the last day of the tax year in which the security becomes worthless. For purposes of this rule, the term security includes (1) a share of stock in a corporation; (2) a right to subscribe for, or the right to receive, a share of stock in a corporation; or (3) a bond, debenture, note, or other evidence of indebtedness with interest coupons or in registered form issued by a corporation.59 In some situations, investors recognize an ordinary loss when a security becomes worthless. Investors who contribute capital, either in the form of equity or debt to a corporation that later fails, generally prefer ordinary losses because such losses are deductible against ordinary income. Ordinary losses that generate an NOL can be carried back two years or forward up to 20 years. In general, ordinary loss treatment is available in the following circumstances: Securities that are noncapital assets. An ordinary loss occurs when a security that is a noncapital asset in the hands of the taxpayer is sold or exchanged or becomes totally worthless. Securities in this category include those held as inventory by a securities dealer. Affiliated corporations. A domestic corporation can claim an ordinary loss for any affiliated corporations security that becomes worthless during the tax year. The domestic corporation must own at least 80% of the total voting power of all classes of stock entitled to vote, and at least 80% of each class of nonvoting stock (other than stock limited and preferred as to dividends). At least 90% of the aggregate gross receipts of the loss corporation for all tax years must have been derived from nonpassive income sources. Section 1244 stock. Section 1244 permits a shareholder to claim an ordinary loss if qualifying stock issued by a small business corporation is sold or exchanged or becomes worthless. This treatment is available only to an individual who was issued the qualifying stock or who was a partner in a partnership at the time the partnership acquired the qualifying stock. In the latter case, the partners distributive share of partnership losses includes the loss sustained by the partnership on such stock. Ordinary loss treatment is not available for stock inherited, received as a gift, or purchased from another shareholder. The ordinary loss is limited to $50,000 per year (or $100,000 if the taxpayer is married and files a joint return). Losses exceeding the dollar ceiling in any given year are considered capital in character.
For $175,000, Tammy and her husband Cole purchased 25% of Minor Corporations initial offering of a single class of stock. Minor is a small business corporation, and the Minor stock satisfies all Sec. 1244 requirements. On September 1 of the current year, Minor filed for bankruptcy. Two years later, the bankruptcy court notifies shareholders that the Minor stock is worthless. In that year, Tammy and Cole can deduct $100,000 of their initial investment as an ordinary loss. The remaining $75,000 loss is treated as capital in character.
EXAMPLE C:2-46
If a corporation issues Sec. 1244 stock for property whose adjusted basis exceeds its FMV immediately before the exchange, the stocks basis is reduced to the propertys FMV for the purpose of determining the ordinary loss amount.
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Sec. 165(g).
Corporate Formations and Capital Structure Corporations 2-33 EXAMPLE C:2-47 In a Sec. 351 nontaxable exchange, Penny transfers to Small Corporation property having a $40,000 adjusted basis and a $32,000 FMV for 100 shares of Sec. 1244 stock. Ordinarily, Pennys basis in the stock would be $40,000. However, for Sec. 1244 purposes, her stock basis is the propertys FMV, or $32,000. If Penny sells the stock for $10,000, her recognized loss is $30,000 ($10,000 $40,000). Her ordinary loss under Sec. 1244 is $22,000 ($10,000 $32,000 Sec. 1244 basis). The remaining $8,000 loss is treated as capital in character. (Note also that, under Sec. 362(e)(2), Small would reduce its basis in the transferred property to its $32,000 FMV.)
Section 1244 loss treatment requires no special election. Investors, however, should be aware that, if they fail to satisfy certain requirements, ordinary loss treatment will be unavailable, and their loss will be treated as capital in character. The requirements are as follows: The issuing corporation must be a small business corporation at the time it issues the stock. A small business corporation is a corporation that receives in the aggregate $1 million or less in money or noncash property (other than stock and securities) in exchange for its stock.60 The issuing corporation must have derived more than 50% of its aggregate gross receipts from active sources (i.e., other than royalties, rents, dividends, interest, annuities, and gains on sales of stock and securities) during the five most recent tax years ending before the date on which the shareholder sells or exchanges the stock or the stock becomes worthless.
TAX STRATEGY TIP
If a shareholder contributes additional money or property to an existing corporation, he or she should be sure to receive additional stock in the exchange so that it will qualify for Sec. 1244 treatment if all requirements are met. If the shareholder does not receive additional stock, the increased basis of existing stock resulting from the capital contribution will not qualify for Sec. 1244 treatment.
If a shareholder contributes additional money or property to a corporation after acquiring Sec. 1244 stock, the amount of ordinary loss recognized on the sale, exchange, or worthlessness of the Sec. 1244 stock is limited to the shareholders capital contribution at the time the corporation issued the stock.
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U N S E C U R E D D E B T O B L I G AT I O N S In addition to holding an equity interest, shareholders may lend funds to the corporation. The type of loss allowed if the corporation does not repay the borrowed funds depends on the nature of the loan or advance. If the unpaid loan was not evidenced by a security (i.e., an unsecured debt obligation), it is considered to be either business or nonbusiness bad debt. Nonbusiness bad debts are treated less favorably than business bad debts. Under Sec. 166, nonbusiness bad debts are deductible as short-term capital losses (up to the $3,000 annual limit for net capital losses) when they become totally worthless. Business bad debts are deductible as ordinary losses without limitation when they become either partially or totally worthless. The IRS generally treats a loan made by a shareholder to a corporation in connection with his or her stock investment as nonbusiness in character.61 It is understandable why a shareholder might attempt to rebut this presumption with the argument that a business purpose exists for the loan. An advance in connection with the shareholders trade or business, such as a loan to protect the shareholders employment at the corporation, may be treated as an ordinary loss under the business bad debt rules. Regulation Sec. 1.166-5(b) states that whether a bad debt is business or nonbusiness related depends on the taxpayers motive for making the advance. The debt is business related if the necessary relationship between the loss and the conduct of the taxpayers trade or business exists at the time the debt was incurred, acquired, or became worthless. In U.S. v. Edna Generes, the U.S. Supreme Court held that where multiple motives exist for advancing funds to a corporation, such as where a shareholder-employee advances funds to protect his or her employment, determining whether the advance is business or nonbusiness related must be based on the dominant motivation for the
60
Regulation Sec. 1.1244(c)-2 provides special rules for designating which shares of stock are eligible for Sec. 1244 treatment when the corporation has issued more than $1 million of stock.
61 The assumption is made here that the loan is not considered to be an additional capital contribution. In such a case, the Sec. 165 worthless security rules apply instead of the Sec. 166 bad debt rules.

KEY POINT
In many closely held corporations, the shareholders are also employees. Thus, when a shareholderemployee makes a loan to the corporation, a question arises whether the loan is being made in the individuals capacity as an employee or a shareholder. The distinction is important because an employee loan that is worthless is entitled to ordinary loss treatment, whereas a shareholder loan that is worthless is treated as a nonbusiness bad debt (shortterm capital loss).
advance.62 If the advance is only significantly motivated by considerations relating to the taxpayers trade or business, such motivation will not establish a proximate relationship between the bad debt and the taxpayers trade or business. Therefore, it may result in a nonbusiness bad debt characterization. On the other hand, if the advance is dominantly motivated by considerations relating to the taxpayers trade or business, such motivation usually is sufficient to establish such a proximate relationship. Therefore, it may result in a business bad debt characterization. Factors deemed important in determining the character of bad debt include the taxpayers equity in the corporation relative to compensation paid by the corporation. For example, a modest salary paid by the corporation relative to substantial stockholdings in the corporation suggests an investment motive for the advance. Conversely, a substantial salary paid by the corporation relative to modest stockholdings suggests a business motive for the advance. The business motive at issue is the protection of the employee-lenders employment because the advance may help save the business from failing. Reasonable minds may differ on what is substantial and what is modest, and monetary stakes often are high in these cases. Consequently, the determination frequently involves litigation.
Top Corporation employs Mary as its legal counsel. It pays Mary an annual salary of $100,000. In March of the current year, Mary advances the corporation $50,000 to assist it financially. In October of the current year, Top declares bankruptcy and liquidates. In the liquidation, Mary and other investors receive 10 cents on every dollar advanced. If Mary can show that her advance was dominantly motivated by her employment, her $45,000 ($50,000 0.90) loss will be treated as business bad debt, ordinary in character, and fully deductible in the current year. On the other hand, if Mary shows only that the advance was significantly motivated by her employment, her $45,000 loss will be treated as nonbusiness bad debt, capital in character, and deductible in this year and in subsequent years only to the extent of $3,000 in excess of any capital gains she recognizes.
EXAMPLE C:2-48
ADDITIONAL COMMENT
For the act of lending money to a corporation to be considered the taxpayers trade or business, the taxpayer must show that he or she was individually in the business of seeking out, promoting, organizing, and financing business ventures. Ronald L. Farrington v. CIR, 65 AFTR 2d 90-616, 90-1 USTC 50,125 (DC, OK, 1990).
A loss sustained by a shareholder who guarantees a loan made by a third party to the corporation generally is treated as a nonbusiness bad debt. The loss can be claimed only to the extent the shareholder actually pays the third party and is unable to recover the payment from the debtor corporation.63 Occasionally, the IRS treats the amount of a shareholder advance as additional paid-in capital. In such circumstances, any worthless security loss the shareholder claims for his or her equity investment may be increased by this amount.
SELF-STUDY QUESTION
Which tax provisions may potentially limit a transferor shareholder from recognizing a loss on the transfer of property to a corporation?
PLANNING C O N S I D E R AT I O N S
AV O I D I N G S E C . 3 5 1 Section 351 is not an elective provision. If its conditions are met, a corporate formation is tax-free, even if the taxpayer does not want it to be. Most often, taxpayers desire Sec. 351 treatment because it allows them to defer gains when transferring appreciated property to a corporation. In some cases, however, shareholders find such treatment disadvantageous because they would like to recognize gain or loss on the property transferred.
AVOIDING NONRECOGNITION OF LOSSES UNDER SEC. 351. If a shareholder transfers to a corporation property that has declined in value, the shareholder may want to recognize the loss so it can offset income from other sources. The shareholder can recognize the loss only if the Sec. 351 nonrecognition rules and the Sec. 267 related party rules do not apply to the exchange. Avoiding Sec. 351 treatment requires that one or more of its requirements not be met. The simplest way to accomplish this objective is to ensure that the transferors of property do not receive 80% of the voting stock.
63
TA X
ANSWER
Such transfer cannot be to a controlled corporation, or Sec. 351 will defer the loss. Even if Sec. 351 can be avoided, losses on sales between a corporation and a more-than-50% shareholder are disallowed under Sec. 267. Thus, to recognize a loss on the sale of property, such shareholder must, directly or indirectly, own 50% or less of the transferee corporations stock.
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62
29 AFTR 2d 72-609, 72-1 USTC 9259 (USSC, 1972).
Reg. Sec. 1.166-8(a).
Even if a shareholder avoids Sec. 351 treatment, he or she still may not be able to recognize the losses because of the Sec. 267 related party transaction rules. Under Sec. 267(a)(1), if the shareholder owns more than 50% of the corporations stock, directly or indirectly, he or she is a related party and therefore cannot recognize loss on an exchange of property for the corporations stock or other property. If the transferors of property receive less than 80% of the corporations voting stock and if the transferor of loss property does not own more than 50% of the stock, the transferor of loss property may recognize the loss.
EXAMPLE C:2-49 Lynn owns property having a $100,000 basis and a $60,000 FMV. If Lynn transfers the property to White Corporation in a nontaxable exchange under Sec. 351, she will not recognize a loss, which will be deferred until she sells her White stock. If the Sec. 351 requirements are not met, she will recognize a $40,000 loss in the year she transfers the property. If Lynn receives 50% of the White stock in exchange for her property, Cathy, an unrelated individual, receives 25% of the stock in exchange for $30,000 cash, and John, another unrelated individual, receives the remaining 25% for services performed, the Sec. 351 control requirement will not be met because the transferors of property receive less than 80% of the White stock. Moreover, Lynn will not be a related party under Sec. 267 because she will not own more than 50% of the stock either directly or indirectly. Therefore, Lynn will recognize a $40,000 loss on the exchange.
ADDITIONAL COMMENT
Any potential built-in gain on property transferred to the transferee corporation is duplicated because such gain may be recognized at the corporate level and at the shareholder level. This double taxation may be another reason for avoiding the nonrecognition of gain under Sec. 351.
AVOIDING NONRECOGNITION OF GAIN UNDER SEC. 351. Sometimes a transferor would like to recognize gain when he or she transfers appreciated property to a corporation so the transferee corporation can get a stepped-up basis in the transferred property. Some other reasons for recognizing gain are as follows: If the transferors gain is capital in character, he or she can offset this gain with capital losses from other transactions. Individual long-term capital gains are taxed at a maximum 15% rate (through 2012). This rate is below the 35% top marginal tax rate applicable to corporate-level capital gains. The corporations marginal tax rate may be higher than a noncorporate transferors marginal tax rate. In such case, it might be beneficial for the transferor to recognize gain so the corporation can get a stepped-up basis in the property. A stepped-up basis would either reduce the corporations gain when it later sells the property or allow the corporation to claim greater depreciation deductions when it uses the property. A transferor who does not wish to recognize gain on the transfer of appreciated property to a corporation can avoid Sec. 351 treatment through one of the following planning techniques: The transferor can sell the property to the controlled corporation for cash. The transferor can sell the property to the controlled corporation for cash and debt. This transaction involves relatively less cash than the previous transaction. However, the sale may be treated as a nontaxable exchange if the IRS recharacterizes the debt as equity.64 The transferor can sell the property to a third party for cash and have the third party contribute the property to the corporation for stock. The transferor can have the corporation distribute sufficient boot property so that, even if Sec. 351 applies to the transaction, he or she will recognize gain. The transferors can fail one or more of the Sec. 351 tests. For example, if the transferors do not own 80% of the voting stock immediately after the exchange, the Sec. 351 control requirement will not have been met, and they will recognize gain.
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To trigger gain recognition under Sec. 357(b) or (c), the transferors may transfer to the corporation either debt that exceeds the basis of all property transferred or debt that lacks a business purpose.
64 See, for example, Aqualane Shores, Inc. v. CIR, 4 AFTR 2d 5346, 59-2 USTC 9632 (5th Cir., 1959) and Sun Properties, Inc. v. U.S., 47 AFTR 273, 55-1 USTC 9261 (5th Cir., 1955).
2-36 Corporations Chapter 2 EXAMPLE C:2-50 Ten years ago, Jaime purchased land as an investment for $100,000. The land is now worth $500,000. Jaime plans to transfer the land to Bell Corporation in exchange for all its stock. Bell will subdivide the land and sell individual tracts. Its gain on the land sales will be ordinary income. Jaime has realized a large capital loss in the current year and would like to recognize capital gain on the transfer of the land to Bell. One way for Jaime to accomplish this objective is to transfer the land to Bell in exchange for all the Bell stock plus a note for $400,000. Because the note is boot, Jaime will recognize $400,000 of gain even though Sec. 351 applies to the exchange. However, if the note is due in a subsequent year, Jaimes gain will be deferred until collection unless she elects out of the installment method.
PROCEDURAL C O N S I D E R AT I O N S
REPORTING REQUIREMENTS UNDER SEC. 351 A taxpayer who receives stock or other property in a Sec. 351 exchange must attach a statement to his or her tax return for the period encompassing the date of the exchange.65 The statement must include all facts pertinent to the exchange, including: A description of the property transferred and its adjusted basis to the transferor A description of the stock received in the exchange, including its type, number of shares, and FMV A description of any other securities received in the exchange, including principal amount, terms, and FMV The amount of money received A description of any other property received, including its FMV A statement of the liabilities transferred to the corporation, including the nature of the liabilities, when and why they were incurred, and the business reason for their transfer The transferee corporation must attach a statement to its tax return for the year in which the exchange took place. The statement must include A complete description of all property received from the transferors The transferors adjusted bases in the property A description of the stock issued to the transferors A description of any other securities issued to the transferors The amount of money distributed to the transferors A description of any other property distributed to the transferors Information regarding the transferors liabilities assumed by the corporation
CO M P L I A N C E
AND
ADDITIONAL COMMENT
The required information provided to the IRS by both the transferor-shareholders and the transferee corporation should be consistent. For example, the FMVs assigned to the stock and other properties included in the exchange should be the same for both sides of the transaction.
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Reg. Sec. 1.351-3.
PR O B L E M
C:2-1 C:2-2
M A T E R I A L S
What entities or business forms are available for a new enterprise? Explain the advantages and disadvantages of each. Alice and Bill plan to go into business together. They anticipate losses in the first two or three years, which they would like to use to offset income from other sources. They also are concerned about exposing their personal assets to business liabilities. Advise Alice and Bill as to what business form would best meet their needs. Bruce and Bob organize Black LLC on May 10 of the current year. What is the entitys default tax classification? Are any alternative classification(s) available? If so, (1) how do Bruce and Bob elect the alternative classification(s) and (2) what are the tax consequences of doing so? John and Wilbur form White Corporation on May 3 of the current year. What is the entitys default tax classification? Are any alternative classification(s) available? If so, (1) how do John and Wilbur elect the alternative classification(s) and (2) what are the tax consequences of doing so? Barbara organizes Blue LLC on May 17 of the current year. What is the entitys default tax classification? Are any alternative classification(s) available? If so, (1) how does Barbara elect the alternative classification(s) and (2) what are the tax consequences of doing so? Debate the following proposition: All corporate formation transactions should be taxable events. What are the tax consequences for the transferor and transferee when property is transferred to a newly created corporation in an exchange qualifying under Sec. 351? What items are considered to be property for purposes of Sec. 351(a)? What items are not considered to be property?
C:2-12 Does Sec. 351 require shareholders to receive
stock equal in value to the property transferred? Suppose Fred and Susan each transfer property worth $50,000 to Spade Corporation. In exchange, Fred receives 25 shares of Spade stock and Susan receives 75 shares. Are the Sec. 351 requirements met? Explain the tax consequences of the exchange.
C:2-13 Does Sec. 351 apply to property transfers to an
C:2-3
existing corporation? Suppose Carl and Lynn each own 50 shares of North Corporation stock. Karl transfers property worth $50,000 to North for an additional 25 shares. Does Sec. 351 apply? Explain why or why not. If not, what can be done to qualify the transaction for Sec. 351 treatment?
C:2-14 How are a transferors basis and holding period
C:2-4
determined for stock and other property (boot) received in a Sec. 351 exchange? How does the transferee corporations assumption of liabilities affect the transferors basis in the stock?
C:2-15 How are the transferee corporations basis and
holding period determined for property received in a Sec. 351 exchange?

C:2-16 Under what circumstances is a corporations
C:2-5
assumption of liabilities considered boot in a Sec. 351 exchange?

C:2-17 What factor(s) would the IRS likely consider to
C:2-6 C:2-7
determine whether the transfer of a liability to a corporation in a Sec. 351 exchange was motivated by a business purpose?
C:2-18 Mark transfers all the property of his sole propri-
C:2-8
How is control defined for purposes of Sec. 351(a)? C:2-10 Explain how the IRS has interpreted the phrase in control immediately after the exchange for purposes of a Sec. 351 exchange.
C:2-9 C:2-11 John and Mary each exchange property worth
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etorship to newly formed Utah Corporation in exchange for all the Utah stock. Mark has claimed depreciation on some of the property. Under what circumstances is Mark required to recapture previously claimed depreciation deductions? How is the depreciation deduction for the year of transfer calculated? What are the tax consequences if Utah sells the depreciable property?
C:2-19 How does the assignment of income doctrine
apply to a Sec. 351 exchange?

C:2-20 What factors did Congress mandate to be consid-
$50,000 for 100 shares of New Corporation stock. Peter exchanges services for 98 shares of New stock and $1,000 in cash for two shares of New stock. Are the Sec. 351 requirements met? Explain why or why not. What advice would you give the shareholders?
ered in determining whether indebtedness is classified as debt or equity for tax purposes?
C:2-21 What are the advantages and disadvantages of
using debt in a firms capital structure?

C:2-22 How are capital contributions by shareholders
and nonshareholders treated by the recipient corporation?
2-38 Corporations
Chapter 2
C:2-23
What are the advantages of Sec. 1244 loss treatment when a stock investment becomes worthless? What conditions must be met to qualify for this treatment? What are the advantages of business bad debt treatment when a shareholders loan or advance to a corporation cannot be repaid? What must
the debtholder show to claim a business bad debt deduction?

C:2-25
C:2-24
Why might shareholders want to avoid Sec. 351 treatment? Explain three ways they can accomplish this end. What are the Sec. 351 reporting requirements?
C:2-26
ISSUE IDENTIFICATION QUESTIONS

C:2-27
C:2-28
Peter Jones has owned all 100 shares of Trenton Corporation stock for the past five years. This year, Mary Smith contributes property with a $50,000 basis and an $80,000 FMV for 80 newly issued Trenton shares. At the same time, Peter contributes $15,000 in cash for 15 newly issued Trenton shares. What tax issues regarding the exchanges should Mary and Peter consider? Carl contributes equipment with a $50,000 adjusted basis and an $80,000 FMV to Cook Corporation for 50 of its 100 shares of stock. His son, Carl Jr., contributes $20,000 cash for the remaining 50 Cook shares. What tax issues regarding the exchanges should Carl and his son consider? Several years ago, Bill acquired 100 shares of Bold Corporation stock directly from the corporation for $100,000 in cash. This year, he sold the stock to Sam for $35,000. What tax issues regarding the stock sale should Bill consider?
C:2-29
PROBLEMS
C:2-30
Transfer of Property and Services to a Controlled Corporation. In 2011, Dick, Evan, and Fran form Triton Corporation. Dick contributes land (a capital asset) having a $50,000 FMV in exchange for 50 shares of Triton stock. He purchased the land in 2009 for $60,000. Evan contributes machinery (Sec. 1231 property purchased in 2008) having a $45,000 adjusted basis and a $30,000 FMV in exchange for 30 shares of Triton stock. Fran contributes services worth $20,000 in exchange for 20 shares of Triton stock. a. What is the amount of Dicks recognized gain or loss? b. What is Dicks basis in his Triton shares? When does his holding period begin? c. What is the amount of Evans recognized gain or loss? d. What is Evans basis in his Triton shares? When does his holding period begin? e. How much income, if any, does Fran recognize? f. What is Frans basis in her Triton shares? When does her holding period begin? g. What is Tritons basis in the land and the machinery? When does its holding period begin? How does Triton treat the amount paid to Fran for her services? Transfer of Property and Services to a Controlled Corporation. In 2011, Ed, Fran, and George form Jet Corporation. Ed contributes land having a $35,000 FMV purchased as an investment in 2007 for $15,000 in exchange for 35 shares of Jet stock. Fran contributes machinery (Sec. 1231 property) purchased in 2007 and used in her business in exchange for 35 shares of Jet stock. Immediately before the exchange, the machinery had a $45,000 adjusted basis and a $35,000 FMV. George contributes services worth $30,000 in exchange for 30 shares of Jet stock. a. What is the amount of Eds recognized gain or loss? b. What is Eds basis in his Jet shares? When does his holding period begin? c. What is the amount of Frans recognized gain or loss? d. What is Frans basis in her Jet shares? When does her holding period begin? e. How much income, if any, does George recognize? f. What is Georges basis in his Jet shares? When does his holding period begin? g. What is Jets basis in the land and the machinery? When does its holding period begin? How does Jet treat the amount paid to George for his services? h. How would your answers to Parts a through g change if George instead contributed $5,000 in cash and services worth $25,000 for his 30 shares of Jet stock?
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Corporate Formations and Capital Structure
Corporations 2-39
C:2-32
Control Requirement. In which of the following independent situations is the Sec. 351 control requirement met? a. Olive transfers property to Quick Corporation for 75% of Quick stock, and Mary provides services to Quick for the remaining 25% of Quick stock. b. Pete transfers property to Target Corporation for 60% of Target stock, and Robert transfers property worth $15,000 and performs services worth $25,000 for the remaining 40% of Target stock. c. Herb and his wife, Wilma, each have owned 50 of the 100 outstanding shares of Vast Corporation stock since it was formed three years ago. In the current year, their son, Sam, transfers property to Vast for 50 newly issued shares of Vast stock. d. Charles and Ruth develop a plan to form Tiny Corporation. On June 3 of this year, Charles transfers property worth $50,000 for 50 shares of Tiny stock. On August 1, Ruth transfers $50,000 cash for 50 shares of Tiny stock. e. Assume the same facts as in Part d except that Charles has a prearranged plan to sell 30 of his shares to Sam on October 1. Control Requirement. In which of the following unrelated exchanges is the Sec. 351 control requirement met? If the transaction does not meet the Sec. 351 requirements, suggest ways in which the transaction can be structured so as to meet these requirements. a. Fred exchanges property worth $50,000 and services worth $50,000 for 100 shares of New Corporation stock. Greta exchanges $100,000 cash for the remaining 100 shares of New stock. b. Maureen exchanges property worth $2,000 and services worth $48,000 for 100 shares of Gemini Corporation stock. Norman exchanges property worth $50,000 for the remaining 100 shares of Gemini stock. Sec. 351 Requirements. Al, Bob, and Carl form West Corporation and transfer the following items to West:
Item Transferred Transferor Item Transferors Basis FMV Shares Received by Transferor
C:2-33
C:2-34
Al Bob Carl
Patent Cash Services
0 $25,000 0
$25,000 25,000 7,500
1,000 common 250 preferred 300 common
The common stock has voting rights. The preferred stock does not. a. Is the exchange nontaxable under Sec. 351? Explain the tax consequences of the exchange to Al, Bob, Carl, and West. b. How would your answer to Part a change if Bob instead had received 200 shares of common stock and 200 shares of preferred stock? c. How would your answer to Part a change if Carl instead had contributed $800 cash as well as services worth $6,700?
C:2-35
Incorporating a Sole Proprietorship. Tom incorporates his sole proprietorship as Total Corporation and transfers its assets to Total in exchange for all 100 shares of Total stock and four $10,000 interest-bearing notes. The stock has a $125,000 FMV. The notes mature consecutively on the first four anniversaries of the incorporation date. The assets transferred are as follows:
Assets Adjusted Basis FMV
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Cash Equipment Minus: Accumulated depreciation Building Minus: Accumulated depreciation Land Total
$ $130,000 (70,000) $100,000 (49,000)
5,000 60,000
5,000 90,000
51,000 24,000 $140,000
40,000 30,000 $165,000
a. What are the amounts and character of Toms recognized gains or losses? b. What is Toms basis in the Total stock and notes? c. What is Totals basis in the property received from Tom?
2-40 Corporations
Chapter 2
C:2-36
Transfer to an Existing Corporation. For the last five years, Ann and Fred each have owned 50 of the 100 outstanding shares of Zero Corporation stock. Ann transfers land having a $10,000 basis and a $25,000 FMV to Zero for an additional 25 shares of Zero stock. Fred transfers $1,000 cash to Zero for one additional share of Zero stock. What amount of the gain or loss must Ann recognize on the exchange? If the transaction does not meet the Sec. 351 requirements, suggest ways in which it can be structured so as to meet these requirements. Transfer to an Existing Corporation. For the last three years, Lucy and Marvin each have owned 50 of the 100 outstanding shares of Lucky Corporation stock. Lucy transfers property having an $8,000 basis and a $12,000 FMV to Lucky for an additional ten shares of Lucky stock. How much gain or loss must Lucy recognize on the exchange? If the transaction does not meet the Sec. 351 requirements, suggest ways in which it can be structured so as to meet these requirements. Disproportionate Receipt of Stock. Jerry transfers property with a $28,000 adjusted basis and a $50,000 FMV to Texas Corporation for 75 shares of Texas stock. Frank, Jerrys father, transfers property with a $32,000 adjusted basis and a $50,000 FMV to Texas for the remaining 25 shares of Texas stock. a. What is the amount of each transferors recognized gain or loss? b. What is Jerrys basis in his Texas stock? c. What is Franks basis in his Texas stock? Sec. 351: Boot Property Received. Sara transfers land (a capital asset) having a $30,000 adjusted basis to Temple Corporation in a Sec. 351 exchange. In return, Sara receives the following consideration:
Consideration FMV
C:2-37
C:2-38
C:2-39
100 shares of Temple common stock 50 shares of Temple qualified preferred stock Temple note due in three years Total
$100,000 50,000 20,000 $170,000
a. What are the amount and character of Saras recognized gain or loss? b. What is Saras basis in her common stock, preferred stock, and note? c. What is Temples basis in the land?
C:2-40
Receipt of Bonds for Property. Joe, Karen, and Larry form Gray Corporation. Joe contributes land (a capital asset) having an $8,000 adjusted basis and a $15,000 FMV to Gray in exchange for Gray ten-year bonds having a $15,000 face value. Karen contributes equipment (Sec. 1231 property) having an $18,000 adjusted basis and a $25,000 FMV for 50 shares of Gray stock. She previously claimed $10,000 of depreciation on the equipment. Larry contributes $25,000 cash for 50 shares of Gray stock. a. What are the amount and character of Joes, Karens, and Larrys recognized gains or losses? b. What basis do Joe, Karen, and Larry take in the stock or bonds they receive? c. What basis does Gray take in the land and equipment? What happens to the $10,000 of depreciation recapture potential on the equipment? Transfer of Depreciable Property. Nora transfers to Needle Corporation depreciable machinery originally costing $18,000 and now having a $15,000 adjusted basis. In exchange, Nora receives all 100 shares of Needle stock having an $18,000 FMV and a three-year Needle note having a $4,000 FMV. a. What are the amount and character of Noras recognized gain or loss? b. What are Noras bases in the Needle stock and note? c. What is Needles basis in the machinery? Transfer of Personal Liabilities. Jim owns 80% of Gold Corporation stock. He transfers a business automobile to Gold in exchange for additional Gold stock worth $5,000 and Golds assumption of both his $1,000 automobile debt and his $2,000 education loan. The automobile originally cost Jim $12,000 and, on the transfer date, has a $4,500 adjusted basis and an $8,000 FMV. a. What are the amount and character of Jims recognized gain or loss? b. What is Jims basis in his additional Gold shares?
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C:2-41
C:2-42
Corporations 2-41
c. When does Jims holding period for the additional shares begin? d. What basis does Gold take in the automobile?
C:2-43
Liabilities in Excess of Basis. Barbara transfers $10,000 cash and machinery having a $15,000 basis and a $35,000 FMV to Moore Corporation in exchange for 50 shares of Moore stock. The machinery was used in Barbaras business, originally cost Barbara $50,000, and is subject to a $28,000 liability, which Moore assumes. Sam exchanges $17,000 cash for the remaining 50 shares of Moore stock. a. What are the amount and character of Barbaras recognized gain or loss? b. What is Barbaras basis in the Moore stock? c. What is Moores basis in the machinery? d. What are the amount and character of Sams recognized gain or loss? e. What is Sams basis in the Moore stock? f. When do Barbara and Sams holding periods for their stock begin? g. How would your answers to Parts a through f change if Sam received $17,000 of Moore stock for legal services (instead of cash)? Transfer of Business Properties. Jerry transfers property having a $32,000 adjusted basis and a $50,000 FMV to Emerald Corporation in exchange for all of Emeralds stock worth $15,000 and Emeralds assumption of a $35,000 mortgage on the property. a. What is the amount of Jerrys recognized gain or loss? b. What is Jerrys basis in the Emerald stock? c. What is Emeralds basis in the property? d. How would your answers to Parts a through c change if the mortgage assumed by Emerald were $15,000 and the Emerald stock were worth $35,000? Incorporating a Cash Basis Proprietorship. Ted decides to incorporate his medical practice. He uses the cash method of accounting. On the date of incorporation, the practice reports the following balance sheet:
Basis FMV
C:2-44
C:2-45
Assets: Cash Accounts receivable Equipment (net of $15,000 depreciation) Total Liabilities and Owners Equity: Current liabilities Note payable on equipment Owners equity Total
$ 5,000 0 35,000 $40,000 $ 0 15,000 25,000 $40,000
$ 5,000 65,000 40,000 $110,000 $ 35,000 15,000 60,000 $110,000
All the current liabilities would be deductible by Ted if he paid them. Ted transfers all the assets and liabilities to a professional corporation in exchange for all of its stock. a. What are the amount and character of Teds recognized gain or loss? b. What is Teds basis in the stock? c. What is the corporations basis in the property? d. Who recognizes income on the receivables upon their collection? Can the corporation obtain a deduction for the liabilities when it pays them?
C:2-46
Transfer of Depreciable Property. On January 10, 2011, Mary transfers to Green Corporation a machine purchased on March 3, 2008, for $100,000. The machine has a $60,000 adjusted basis and a $110,000 FMV on the transfer date. Mary receives all 100 shares of Green stock, worth $100,000, and a two-year Green note worth $10,000. a. What are the amount and character of Marys recognized gain or loss? b. What is Marys basis in the stock and note? When does her holding period begin? c. What are the amount and character of Greens gain or loss? d. What is Greens basis in the machine? When does Greens holding period begin?
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2-42 Corporations
Chapter 2
C:2-47
C:2-48
Contribution to Capital by a Nonshareholder. The City of Omaha donates land worth $500,000 to Ace Corporation to induce it to locate in Omaha and create an estimated 2,000 jobs for its citizens. a. How much income, if any, must Ace report on the land contribution? b. What basis does Ace take in the land? c. Assume the same facts except the City of Omaha also donated to Ace $100,000 cash, which the corporation used to pay a portion of the $250,000 cost of equipment that it purchased six months later. How much income, if any, must Ace report on the cash contribution? What basis does Ace take in the equipment? Choice of Capital Structure. Kobe transfers $500,000 in cash to newly formed Bryant Corporation for 100% of Bryants stock. In the first year of operations, Bryants taxable income before any payments to Kobe is $120,000. What total amount of taxable income must Kobe and Bryant each report in the following two scenarios? a. Bryant pays a $70,000 dividend to Kobe. b. Assume that when Bryant was formed, Kobe transferred his $500,000 to the corporation for $250,000 of Bryant stock and $250,000 in Bryant notes. The notes are repayable in five annual installments of $50,000 plus 8% annual interest on the unpaid balance. During the current year, Bryant gives Kobe $50,000 in repayment of the first note plus $20,000 interest. Worthless Stock or Securities. Tom and Vicki, husband and wife who file a joint return, each purchase for $75,000 one-half the stock in Guest Corporation from Al. Tom is employed full-time by Guest and earns $100,000 in annual salary. Because of Guests financial difficulties, Tom and Vicki each lend Guest an additional $25,000. The $25,000 is secured by registered bonds and is repayable in five years, with interest accruing at the prevailing market rate. Guests financial difficulties escalate, and it eventually declares bankruptcy. Tom and Vicki receive nothing for their Guest stock or Guest bonds. a. What are the amount and character of each shareholders loss on the worthless stock and bonds? b. How would your answer to Part a change if the liability were not secured by bonds? c. How would your answer to Part a change if Tom and Vicki had purchased their stock for $75,000 each at the time Guest was formed? Worthless Stock. Duck Corporation is owned equally by Harry, Susan, and Big Corporation. Harry and Susan are single. In 2003, Harry, Tom, and Big, the original investors in Duck, each paid $125,000 for their Duck stock. Susan purchased her stock from Tom in 2006 for $175,000. No adjustments to basis occur after the stock acquisition date. Duck encounters financial difficulties as a result of a lawsuit brought by a customer who suffered personal injuries from using a defective product. Duck files for bankruptcy, and uses all its assets to pay its creditors in 2011. What are the amount and character of each shareholders loss? Sale of Sec. 1244 Stock. Lois, who is single, transfers property with an $80,000 basis and a $120,000 FMV to Water Corporation in exchange for all 100 shares of Water stock. The shares qualify as Sec. 1244 stock. Two years later, Lois sells the stock for $28,000. a. What are the amount and character of Loiss recognized gain or loss? b. How would your answer to Part a change if the FMV of the property were $70,000? Transfer of Sec. 1244 Stock. Assume the same facts as in Problem C:2-51 except that Lois gave the Water stock to her daughter, Sue, six months after she received it. The stock had a $120,000 FMV when Lois acquired it and when she made the gift. Sue sold the stock two years later for $28,000. How is the loss treated for tax purposes? Avoiding Sec. 351 Treatment. Six years ago, Donna purchased land as an investment. The land cost $150,000 and is now worth $480,000. Donna plans to transfer the land to Development Corporation, which will subdivide it and sell individual tracts. Developments income on the land sales will be ordinary in character. a. What are the tax consequences of the asset transfer and land sales if Donna contributes the land to Development in exchange for all its stock? b. In what alternative ways can the transaction be structured to achieve more favorable tax results? Assume Donnas marginal tax rate is 35%, and Developments marginal tax rate is 34%.
C:2-49
C:2-50
C:2-51
C:2-52
C:2-53
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Corporations 2-43
COMPREHENSIVE PROBLEMS
C:2-54
On March 1 of the current year, Alice, Bob, Carla, and Dick form Bear Corporation and transfer the following items:
Property Transferred Basis to Transferor Number of Common Shares Issued
Transferor
Asset
FMV
Alice
Bob Carla Dick
Land Building Mortgage on the land and building Equipment Van Accounting services
$12,000 38,000 60,000 25,000 15,000 0
$30,000 70,000 60,000 40,000 10,000 10,000
400 300 50 100
Alice purchased the land and building several years ago for $12,000 and $50,000, respectively. Alice has claimed straight-line depreciation on the building. Bob also receives a Bear note for $10,000 due in three years. The note bears interest at the prevailing market rate. Bob purchased the equipment three years ago for $50,000. Carla also receives $5,000 cash. Carla purchased the van two years ago for $20,000. a. Does the transaction satisfy the requirements of Sec. 351? b. What are the amount and character of the gains or losses recognized by Alice, Bob, Carla, Dick, and Bear? c. What is each shareholders basis in his or her Bear stock? When does the holding period for the stock begin? d. What is Bears basis in its property and services? When does the holding period for each property begin?
C:2-55
On June 3 of the current year, Eric, Florence, and George form Wildcat Corporation and transfer the following items:
Item Transferred Basis to Transferor Number of Common Shares Issued
Transferor
Asset
FMV
Eric Florence George
Land Equipment Legal services
$200,000 0 0
$50,000 25,000 25,000
500 250 250
Eric purchased the land (a capital asset) five years ago for $200,000. Florence purchased the equipment three years ago for $48,000. The equipment has been fully depreciated. a. Does the transaction meet the requirements of Sec. 351? b. What are the amount and character of the gains or losses recognized by Eric, Florence, George, and Wildcat? c. What is each shareholders basis in his or her Wildcat stock? When does the holding period for the stock begin? d. What is Wildcats basis in the land, equipment, and services? When does the holding period for each property begin?
TAX STRATEGY PROBLEMS

C:2-56
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Assume the same facts as in Problem C:2-55. a. Under what circumstances is the tax result in Problem C:2-55 beneficial, and for which shareholders? Are the shareholders likely to be pleased with the result? b. If the shareholders decide that meeting the Sec. 351 requirements would generate a greater tax benefit, how might they proceed? Paula Green owns and operates the Green Thumb Nursery as a sole proprietorship. The business has total assets with a $260,000 adjusted basis and a $500,000 FMV. Paula
C:2-57
2-44 Corporations
Chapter 2
wants to expand into the landscaping business. She views this expansion as risky and therefore wants to incorporate so as not to put her personal assets at risk. Her friend, Mary Brown, is willing to invest $250,000 in the enterprise. Although Green Thumb has earned approximately $55,000 per year, Paula and Mary expect that, when the landscaping business is launched, the new corporation will incur losses of $50,000 per year for the next two years. They expect profits of at least $80,000 annually, beginning in the third year. Paula and Mary earn approximately $50,000 from other sources. They are considering the following alternative capital structures and elections: a. Green Thumb issues 50 shares of common stock to Paula and 25 shares of common stock to Mary. b. Green Thumb issues 50 shares of common stock to Paula and a $250,000 ten-year bond bearing interest at 8% to Mary. c. Green Thumb issues 40 shares of common stock to Paula plus a $100,000 ten-year bond bearing interest at 6% and 15 shares of common stock to Mary, plus a $100,000 ten-year bond bearing interest at 6%. d. Green Thumb issues 50 shares of common stock to Paula and 25 shares of preferred stock to Mary. The preferred stock is nonparticipating but pays a cumulative preferred dividend at 8% of its $250,000 stated value. What are the advantages and disadvantages of each of these alternatives? What considerations are relevant for determining the best alternative?
C:2-58
Assume the same facts as in Problem C:2-57. a. Given the nurserys operating prospects, what business forms might Paula and Mary consider and why? b. In light of their proposed use of debt and equity, how might Paula and Mary structure a partnership to achieve their various business and investment objectives?
CASE STUDY PROBLEMS

C:2-59
Bob Jones has a small repair shop that he has run for several years as a sole proprietorship. The proprietorship uses the cash method of accounting and the calendar year as its tax year. Bob needs additional capital for expansion and knows two people who might be interested in investing in the business. One would like to work for the business. The other would only invest. Bob wants to know the tax consequences of incorporating the business. His business assets include a building, equipment, accounts receivable, and cash. Liabilities include a mortgage on the building and a few accounts payable, which are deductible when paid. Assume that Bobs ordinary tax rate is greater than 25%. Required: Write a memorandum to Bob explaining the tax consequences of the incorporation. As part of your memorandum examine the possibility of having the corporation issue common and preferred stock and debt for the shareholders property and money. Eric Wright conducts a dry cleaning business as a sole proprietorship. The business operates in a building that Eric owns. Last year, Eric mortgaged for $150,000 the building and the land on which the building sits. He used the money for a down payment on his personal residence and college expenses for his two children. He now wants to incorporate his business and transfer the building and the mortgage to a new corporation, along with other assets and some accounts payable. The amount of the unpaid mortgage balance will not exceed Erics adjusted basis in the land and building at the time he transfers them to the corporation. Eric is aware that Sec. 357(b) could impact the tax consequences of the transaction because no bona fide business purpose exists for the mortgage transfer, which the IRS might consider to have been for a tax avoidance purpose. However, Eric refuses to acknowledge this possibility when you confront him. He maintains that many taxpayers play the audit lottery and that, in the event of an audit, invoking this issue could be a bargaining ploy. Required: What information about the transaction must be provided with the transferor and transferees tax returns for the year in which the transfer takes place? Discuss the ethical issues raised by the AICPAs Statements on Standards for Tax Services No. 1, Tax Return Positions (which can be found in Appendix E) as it relates to this situation. Should the tax practitioner act as an advocate for the client? Should the practitioner sign the return?
C:2-60
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Corporations 2-45

C:2-61
Anne and Michael own and operate a successful mattress business. They have decided to take the business public. They contribute all the assets of the business to newly formed Spring Corporation each in exchange for 20% of the stock. The remaining 60% is issued to an underwriting company that will sell the stock to the public and charge 10% of the sales proceeds as a commission. Prepare a memorandum for your tax manager explaining whether or not this transaction meets the tax-free requirements of Sec. 351. Bob and Carl transfer property to Stone Corporation for 90% and 10% of Stone stock, respectively. Pursuant to a binding agreement concluded before the transfer, Bob sells half of his stock to Carl. Prepare a memorandum for your tax manager explaining why the exchange does or does not meet the Sec. 351 control requirement. Your manager has suggested that, at a minimum, you consult the following authorities: IRC Sec. 351 Reg. Sec. 1.351-1 In an exchange qualifying for Sec. 351 tax-free treatment, Greta receives 100 shares of White Corporation stock plus a right to receive another 25 shares. The right is contingent on the valuation of a patent contributed by Greta. Because the patent license is pending, the patent cannot be valued for several months. Prepare a memorandum for your tax manager explaining whether the underlying 25 shares are considered stock for purposes of Sec. 351 and what tax consequences ensue from Gretas receipt of the 100 shares now and 25 shares later upon exercise of the right. Your clients, Lisa and Matthew, are planning to form Lima Corporation. Lisa will contribute $50,000 cash to Lima for 50 shares of its stock. Matthew will contribute land having a $35,000 adjusted basis and a $50,000 FMV for 50 shares of Lima stock. Lima will borrow additional capital from a bank and then will subdivide and sell the land. Prepare a memorandum for your tax manager outlining the tax treatment of the corporate formation. In your memorandum, compare tax and financial accounting for this transaction. References: IRC Sec. 351 Accounting Standards Codification (ASC) 845 (Nonmonetary Transactions), formerly APB No. 29 John plans to transfer the assets and liabilities of his business to Newco in exchange for all of Newcos stock. The assets have a $250,000 basis and an $800,000 FMV. John also plans to transfer $475,000 of business related liabilities to Newco. Under Sec. 357(c), can John avoid recognizing a $175,000 gain (the excess of liabilities over the basis of assets tranferred) by transferring a $175,000 personal promissory note along with the assets and liabilities? Six years ago, Leticia, Monica, and Nathaniel organized Lemona Corporation to develop and sell computer software. Each individual contributed $10,000 to Lemona in exchange for 1,000 shares of Lemona stock (for a total of 3,000 shares issued and outstanding). The corporation also borrowed $250,000 from Venture Capital Associates to finance operating costs and capital expenditures. Because of intense competition, Lemona struggled in its early years of operation and sustained chronic losses. This year, Leticia, who serves as Lemonas president, decided to seek additional funds to finance Lemonas working capital. Venture Capital Associates declined Leticias request for additional capital because of the firms already high credit exposure to the software corporation. Hi-Tech Bank proposed to lend Limona $100,000, but at a 10% premium over the prime rate. (Other software manufacturers in the same market can borrow at a 3% premium.) Investment Managers LLC proposed to inject $50,000 of equity capital into Lemona, but on the condition that the investment firm be granted the right to elect five members to Lemonas board of directors. Discouraged by the high cost of external borrowing, Leticia turned to Monica and Nathaniel. She proposed to Monica and Nathaniel that each of the three original investors contribute an additional $25,000 to Lemona, each in exchange for five 20-year debentures. The debentures would be unsecured and subordinated to Venture Capital Associates debt. Annual interest on the debentures would accrue at a floating 5% premium over the prime rate. The right to receive interest payments would be cumulative; that is, each debenture
C:2-62
C:2-63
C:2-64
C:2-65
C:2-66
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2-46 Corporations
Chapter 2
holder would be entitled to past and current interest payents before Lemonas board could declare a common stock dividend. The debentures would be both nontransferable and noncallable. Leticia, Monica, and Nathaniel have asked you, their tax accountant, to advise them on the tax implications of the proposed financing arrangement. After researching the issue, set forth your advice in a client letter. At a minimum, you should consult the following authorities: IRC Sec. 385 Rudolph A. Hardman, 60 AFTR 2d 87-5651, 82-7 USTC 9523 (9th Cir., 1987) Tomlinson v. The 1661 Corporation, 19 AFTR 2d 1413, 67-1 USTC 9438 (5th Cir., 1967)
3
C H A P T E
THE C O R P O R AT E I N C O M E TA X
LEARNING OBJECTIVES
1
Apply the requirements for selecting tax years and accounting methods to various types of C corporations Compute a corporations taxable income Compute a corporations income tax liability Understand what a controlled group is and the tax consequences of being a controlled group Understand how compensation planning can reduce taxes for corporations and their shareholders Determine the requirements for paying corporate income taxes and filing a corporate tax return Determine the financial statement implications of federal income taxes
2 3 4
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3-1
CHAPTER OUTLINE
Corporate Elections...3-2 General Formula for Determining the Corporate Tax Liability...3-5 Computing a Corporations Taxable Income...3-6 Computing a Corporations Income Tax Liability...3-22 Controlled Groups of Corporations...3-24 Tax Planning Considerations...3-31 Compliance and Procedural Considerations...3-35 Financial Statement Implications...3-43
A corporation is a separate taxpaying entity that must file an annual tax return even if it has no income or loss for the year. This chapter covers the tax rules for domestic corporations (i.e., corporations incorporated in one of the 50 states or under federal law) and other entities taxed as domestic corporations under the check-the-box regulations.1 It explains the rules for determining a corporations taxable income, loss, and tax liability and for filing corporate tax returns. See Table C:3-1 for the general formula for determining the corporate tax liability. It also discusses the financial implications of federal income taxes. Some of these implications appear briefly in the Book-to-Tax Accounting Comparisons, and a more detailed discussion appears at the end of this chapter. The corporations discussed in this chapter are sometimes referred to as regular or C corporations because Subchapter C of the Internal Revenue Code (IRC) dictates much of their tax treatment. Corporations that have a special tax status include S corporations (see Chapter C:11) and affiliated groups of corporations that file consolidated returns (see Chapter C:8). A comparison of the tax treatments of C corporations, partnerships, and S corporations appears in Appendix F.
CO R P O R AT E
OBJECTIVE
ELECTIONS
Apply the requirements for selecting tax years and accounting methods to various types of C corporations
Once formed, a corporation must make certain elections, such as selecting its tax year and its accounting methods. The corporation makes these elections on its first tax return. They are important and should be considered carefully because, once made, they generally can be changed only with permission from the Internal Revenue Service (IRS).
KEY POINT
Whereas partnerships and S corporations generally must adopt a calendar year, C corporations (other than personal service corporations) have the flexibility of adopting a fiscal year. The fiscal year must end on the last day of the month.
CHOOSING A CALENDAR OR FISCAL YEAR A new corporation may elect to use either a calendar year or a fiscal year as its accounting period. The corporations tax year must be the same as the annual accounting period used for financial accounting purposes. The corporation makes the election by filing its first tax return for the selected period. A calendar year is a 12-month period ending on December 31. A fiscal year is a 12-month period ending on the last day of any month other than December. Examples of acceptable fiscal years are February 1, 2011, through January 31, 2012, and October 1, 2011, through September 30, 2012. A fiscal year that runs from September 16, 2011, through September 15, 2012, however, is not an acceptable tax year because it does not end on the last day of the month. The IRS requires that a corporation using an unacceptable tax year change to a calendar year.2
SHORT TAX PERIOD. A corporations first tax year might not cover a full 12-month period. If, for example, a corporation begins business on March 10, 2011, and elects a fiscal year ending on September 30, its first tax year covers the period from March 10, 2011, through September 30, 2011. Its second tax year covers the period from October 1, 2011, through September 30, 2012. The corporation must file a short-period tax return for its first tax year.3 From then on, its tax returns will cover a full 12-month period. The last year of a corporations life, however, also may be a short period covering the period from the beginning of the last tax year through the date the corporation ceases to exist. RESTRICTIONS ON ADOPTING A TAX YEAR. A corporation may be subject to restrictions in its choice of a tax year. For example, an S corporation generally must use a calendar year (see Chapter C:11), and members of an affiliated group filing a consolidated return must use the same tax year as the groups parent corporation (see Chapter C:8). A personal service corporation (PSC) generally must use a calendar year as its tax year. This restriction prevents a personal service corporation with, for example, a January 31 year-end from distributing a large portion of its income earned during the February through December portion of 2011 to its calendar year shareholder-employees in January
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1 Sec. 7701(a)(4). Corporations that are not classified as domestic are foreign corporations. Foreign corporations are taxed like domestic corporations if they conduct a trade or business in the United States.
Sec. 441. Section 441 also permits accounting periods of either 52 or 53 weeks that always end on the same day of the week (such as Friday). 3 Sec. 443(a)(2).
The Corporate Income Tax Corporations 3-3 TABLE C:3-1
General Rules for Determining the Corporate Tax Liability

Income Tax Gross income Minus: Deductions and losses Taxable income before special deductions Minus: Special deductions Taxable income Times: Corporate tax rates Regular tax before credits and other taxes Minus: Foreign tax credit and possessions tax credit Regular tax Minus: Other tax credits Plus: Recapture of previously claimed tax credits Income tax liability Taxable income before NOL deduction Plus or minus: Adjustments to taxable income Plus: Tax preference items Minus: Alternative tax NOL deduction Alternative minimum taxable income Minus: Statutory exemption Tax base Times: 20% tax rate Tentative minimum tax before credits Minus: AMT foreign tax credit Tentative minimum tax Minus: Regular (income) tax Alternative minimum tax (if greater than zero) (See Table C:5-1) Alternative Minimum Tax (AMT)
Income (regular) tax liability Plus: Alternative minimum tax Special taxes (if applicable): Accumulated earnings tax Personal holding company tax Total tax liability Minus: Estimated tax payments Net tax due (or refund)
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2012, thereby deferring income largely earned in 2011 to 2012. For this purpose, the IRC defines a PSC as a corporation whose principal activity is the performance of personal services by its employee-owners who own more than 10% of the stock (by value) on any day of the year.4 A PSC, however, may adopt a fiscal tax year if it can establish a business purpose for such a year. For example, it may be able to establish a natural business year and use that year as its tax year.5 Deferral of income by shareholders is not an acceptable business purpose. Even when no business purpose exists, a new PSC may elect to use a September 30, October 31, or November 30 year-end if it meets minimum distribution requirements to employee-owners during the deferral period.6 If it fails to meet these distribution requirements, the PSC may have to defer to its next fiscal year the deduction for amounts paid to employee-owners.7
Sec. 441(i). The natural business year rule requires that the year-end used for tax purposes coincide with the end of the taxpayers peak business period. (See the partnership and S corporation chapters and Rev. Proc. 2006-46, 2006-2 C.B. 859, for a further explanation of this exception.)
5
6 7
Sec. 444. Sec. 280H.
3-4 Corporations Chapter 3 EXAMPLE C:3-1 Alice and Bob form Cole Corporation with each shareholder owning 50% of its stock. Alice and Bob use the calendar year as their tax year. Alice and Bob are both active in the business and are the corporations primary employees. The new corporation performs engineering services for the automotive industry. Cole must use a calendar year as its tax year unless it qualifies for a fiscal year based on a business purpose exception. Alternatively, it may adopt a fiscal year ending on September 30, October 31, or November 30, provided it complies with certain minimum distribution requirements.
CHANGING THE ANNUAL ACCOUNTING PERIOD. A corporation that desires to change its annual accounting period must obtain the prior approval of the IRS unless Treasury Regulations specifically authorized the change or IRS procedures allow an automatic change. A change in accounting period usually results in a short period running from the end of the old annual accounting period to the beginning of the new accounting period. A corporation must request approval of an accounting period change by filing Form 1128 (Application for Change in Annual Accounting Period) on or before the fifteenth day of the third calendar month following the close of the short period. The IRS usually will approve a request for change if a substantial business purpose exists for the change and if the taxpayer agrees to the IRSs prescribed terms, conditions, and adjustments necessary to prevent any substantial distortion of income. A substantial distortion of income includes, for example, a change that causes the deferral of a substantial portion of the taxpayers income, or shifting of a substantial portion of deductions, from one taxable year to another.8 Under IRS administrative procedures, a corporation may change its annual accounting period without prior IRS approval if it meets the following conditions: The corporation files a short-period tax return for the year of change and annualizes its income when computing its tax for the short period. The corporation files full 12-month returns for subsequent years ending on the new year-end. The corporation closes its books as of the last day of the short-period and subsequently computes its income and keeps its books using the new tax year. If the corporation generates an NOL or capital loss in the short period, it may not carry back the losses but must carry them over to future years. However, if the loss is $50,000 or less, the corporation may carry it back. The corporation must not have changed its accounting period within the previous 48 months (with some exceptions). The corporation must not have an interest in a pass-through entity as of the end of the short period (with some exceptions). The corporation is not an S corporation, personal service corporation, tax-exempt organization, or other specialized corporation.9
Treasury Regulations literally require taxpayers to use the same overall accounting method for book and tax purposes. However, the courts have allowed different methods if the taxpayer maintains adequate reconciling workpapers. The IRS has adopted the courts position on this issue.
ACCOUNTING METHODS A new corporation must select the overall accounting method it will use for tax purposes. The method chosen must be indicated on the corporations initial return. The three possible accounting methods are: accrual, cash, and hybrid.10
ACCRUAL METHOD. Under the accrual method, a corporation reports income in the year it earns the income and reports expenses in the year it incurs the expenses. A corporation must use the accrual method unless it qualifies under one of the following exceptions: It qualifies as a family farming corporation.11
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Reg. Sec. 1.442-1(b)(3). Also see Rev. Proc. 2002-39, 2002-1 C.B. 1046. Rev. Proc. 2006-45, 2006-2 C.B. 851. For automatic change procedures for S corporations and personal service corporations, see Rev. Proc. 2006-46, 2006-2 C.B. 859. 10 Sec. 446.
9
11 Sec. 448. Certain family farming corporations having gross receipts of less than $25 million may use the cash method of accounting. Section 447 requires farming corporations with gross receipts over $25 million to use the accrual method of accounting.
The Corporate Income Tax Corporations 3-5
It qualifies as a personal service corporation, which is a corporation substantially all of whose activities involve the performance of services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, or consulting; and substantially all of whose stock is held by current (or retired) employees performing the services listed above, their estates, or (for two years only) persons who inherited their stock from such employees.12 It meets a $5 million gross receipts test for all prior tax years beginning after December 31, 1985. A corporation meets this test for any prior tax year if its average gross receipts for the three-year period ending with that prior tax year do not exceed $5 million. If the corporation was not in existence for the entire three-year period, the period during which the corporation was in existence may be used.
ADDITIONAL COMMENT
Whereas partnerships and S corporations are generally allowed to be cash method taxpayers, most C corporations must use the accrual method of accounting. This restriction can prove inconvenient for many small corporations (with more than $5 million of gross receipts) that would rather use the less complicated cash method of accounting.
It has elected S corporation status. If a corporation meets one of the exceptions listed above, it may use either the accrual method or one of the following two methods. CASH METHOD. Under the cash method, a corporation reports income when it actually or constructively receives the income and reports expenses when it pays them. Corporations in service industries such as engineering, medicine, law, and accounting generally use this method because they prefer to defer recognition until they actually receive the income. This method may not be used if inventories are a material income-producing factor. In such case, the corporation must use either the accrual method or the hybrid method of accounting. HYBRID METHOD. Under the hybrid method, a corporation uses the accrual method of accounting for sales, cost of goods sold, inventories, accounts receivable, and accounts payable, and uses the cash method of accounting for all other income and expense items. Small businesses with inventories (e.g., retail stores) often use this method. Although they must use the accrual method of accounting for sales-related income and expense items, they often find the cash method less burdensome to use for other income and expense items, such as utilities, rents, salaries, and taxes.
FORMULA FOR DETERMINING THE C O R P O R AT E TA X L I A B I L I T Y

Each year, C corporations must determine their corporate income (or regular) tax liability. In addition to the income tax, a C corporation may owe the corporate alternative minimum tax and possibly either the accumulated earnings tax or the personal holding company tax. A corporations total tax liability equals the sum of its regular income tax liability plus any additional taxes that it owes. This chapter explains how to compute a corporations income (or regular) tax liability. Chapter C:5 explains the computation of the corporate alternative minimum tax, personal holding company tax, and accumulated earnings tax.
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GE N E R A L
12 The personal service corporation definition for the tax year election [Sec. 441(i)] is different from the personal service corporation definition for the cash accounting method election [Sec. 448].
A C O R P O R AT I O N S TA X A B L E INCOME
OBJECTIVE
CO M P U T I N G
Compute a corporations taxable income
Like an individual, a corporation is a taxpaying entity with gross income and deductions. However, a number of differences arise between individual and corporate taxation as summarized in Figure C:3-1. This section of the text expands on some of these items and discusses other tax aspects particular to corporations.
SALES AND EXCHANGES OF PROPERTY Sales and exchanges of property generally are treated the same way for corporations as for an individual. However, special rules apply to capital gains and losses, and corporations are subject to an additional 20% depreciation recapture rule under Sec. 291 on sales of Sec. 1250 property.
1.
2.
3.
4.
5. 6.
7. 8.
9. 10. 11. 12. 13.
Gross income: Generally, the same gross income definition applies to individuals and corporations. Certain exclusions are available to individuals but not to corporations (e.g, fringe benefits); other exclusions are available to corporations but not to individuals (e.g., capital contributions). Deductions: Individuals have above-the-line deductions (for AGI), itemized deductions (from AGI), and personal exemptions. Corporations do not compute AGI, and their deductions are presumed to be ordinary and necessary business expenses. Charitable contributions: Individuals are limited to 50% of AGI (30% for capital gain property). Corporations are limited to 10% of taxable income computed without regard to the dividends-received deductions, the U.S. production activities deduction, NOL and capital loss carrybacks, and the contribution deduction itself. Individuals deduct a contribution only in the year they pay it. Accrual basis corporations may deduct contributions in the year of accrual if the board of directors authorizes the contribution by year-end, and the corporation pays it by the fifteenth day of the third month of the next year. Depreciation on Sec. 1250 property: Individuals generally do not recapture depreciation under the MACRS rules because straight-line depreciation applies to real property. Corporations must recapture 20% of the excess of the amount that would be recaptured under Sec. 1245. Individuals are subject to a 25% tax rate on Sec. 1250 gains. Corporations are not subject to this rate. Net capital gains: Individuals usually are taxed at a maximum rate of 15% (however, through 2012, 0%, 25%, and 28% apply in special cases). Corporate capital gains are taxed at the regular corporate tax rates. Capital losses: Individuals can deduct up to $3,000 of net capital losses to offset ordinary income. Individual capital losses carry over indefinitely. Corporations cannot offset any ordinary income with capital losses. However, capital losses carry back three years and forward five years and offset capital gains in those years. Dividends-received deduction: Not available for individuals. Corporations receive a 70%, 80%, or 100% special deduction depending on the percentage of stock ownership. NOLs: Individuals must make many adjustments to arrive at the NOL they are allowed to carry back or forward. A corporations NOL is simply the excess of its deductions over its income for the year. The NOL carries back two years (or an extended period if applicable) and forward 20 years for individuals and corporations, or the taxpayer can elect to forgo the carryback and only carry the NOL forward. For individuals, the U.S. production activities deduction is based on the lesser of qualified production activities income or AGI. For corporations, the deduction is based on the lesser of qualified production activities income or taxable income. Tax rates: Individuals ordinary tax rates range from 10% to 35% (in 2011). Corporate tax rates range from 15% to 39%. AMT: Individual AMT rates are 26% or 28%. The corporate AMT rate is 20%. Corporations are subject to a special AMTI adjustment, called adjusted current earnings (ACE), that does not apply to individuals. Passive Losses: Passive loss rules apply to individuals, partners, S corporation shareholders, closely held C corporations, and PSCs. They do not apply to widely held C corporations. Casualty losses: Casualty losses are deductible in full by a corporation because all corporate casualty losses are considered to be business related. Moreover, they are not reduced by a $100 offset, nor are they restricted to losses exceeding 10% of AGI, as are an individuals nonbusiness casualty losses.
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FIGURE C:3-1
DIFFERENCES BETWEEN INDIVIDUAL AND CORPORATE TAXATION
CAPITAL GAINS AND LOSSES. A corporation has a capital gain or loss if it sells or exchanges a capital asset. As with individuals, a corporation must net all its capital gains and losses to obtain its net capital gain or loss position. Net Capital Gain. A corporation includes all its net capital gains (net long-term capital gains in excess of net short-term capital losses) for the tax year in gross income. Unlike with individuals, a corporations capital gains receive no special tax treatment and are taxed in the same manner as any other ordinary income item.
EXAMPLE C:3-2 Beta Corporation has a net capital gain of $40,000, gross profits on sales of $110,000, and deductible expenses of $28,000. Betas gross income is $150,000 ($40,000 $110,000). Its taxable income is $122,000 ($150,000 $28,000). The $40,000 of net capital gain receives no special treatment and is taxed using the regular corporate tax rates described below.
Net Capital Losses. If a corporation incurs a net capital loss, it cannot deduct the net loss in the current year. A corporations capital losses can offset only capital gains. They never can offset the corporations ordinary income. A corporation must carry back a net capital loss as a short-term capital loss to the three previous tax years and offset capital gains in the earliest year possible (i.e., the losses carry back to the third previous year first). If the loss is not totally absorbed as a carryback, the remainder carries over as a short-term capital loss for five years. Any unused capital losses remaining at the end of the carryover period expire.
EXAMPLE C:3-3 In 2011, East Corporation reports gross profits of $150,000, deductible expenses of $28,000, and a net capital loss of $10,000. East reported the following capital gain net income (excess of gains from sales or exchanges of capital assets over losses from such sales or exchanges) during 2008 through 2010: Year 2008 2009 2010 Capital Gain Net Income $6,000 0 3,000
East has gross income of $150,000 and taxable income of $122,000 ($150,000 $28,000) for 2011. East also has a $10,000 net capital loss that carries back to 2008 first and offsets the $6,000 capital gain net income reported in that year. East receives a refund for the taxes paid in 2008 on the $6,000 of capital gains. The $4,000 ($10,000 $6,000) remainder of the loss carryback carries to 2010 and offsets Easts $3,000 capital gain net income reported in that year. East still has a $1,000 net capital loss carry over to 2012.
ADDITIONAL COMMENT
Under the modified accelerated cost recovery system (MACRS), Sec. 1250 depreciation recapture seldom, if ever, occurs for individuals because MACRS requires straight-line depreciation for Sec. 1250 property. Nevertheless, individuals would be subject to the 25% tax rate on Sec. 1250 gains.
SEC. 291: TAX BENEFIT RECAPTURE RULE. If a taxpayer sells Sec. 1250 property at a gain, Sec. 1250 requires that the taxpayer report the recognized gain as ordinary income to the extent the depreciation taken exceeds the depreciation that would have been allowed had the taxpayer used the straight-line method. This ordinary income is known as Sec. 1250 depreciation recapture. For individuals, any remaining gain is characterized as a combination of Sec. 1250 gain and Sec. 1231 gain. Corporations, however, must recapture as ordinary income an additional amount equal to 20% of the additional ordinary income that would have been recognized had the property been Sec. 1245 property instead of Sec. 1250 property.
Texas Corporation purchased residential real estate several years ago for $125,000, of which $25,000 was allocated to the land and $100,000 to the building. Texas took straight-line MACRS depreciation deductions of $10,606 on the building during the period it held the building. In December of the current year, Texas sells the property for $155,000, of which $45,000 is allocated to the land and $110,000 to the building. Texas has a $20,000 ($45,000 $25,000) gain on the land sale, all of which is Sec. 1231 gain. This gain is not affected by Sec. 291 because land is not Sec. 1250 property. Texas has a $20,606 [$110,000 sales price ($100,000 original cost $10,606 depreciation)] gain on the sale of the building. If Texas were an individual taxpayer, $10,606 would be a Sec. 1250 gain subject to a 25% tax rate, and the remaining $10,000 would
EXAMPLE C:3-4
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ADDITIONAL COMMENT
Section 291 results in the recapture, as ordinary income, of an additional 20% of the gain on sales of Sec. 1250 property. This recapture requirement reduces the amount of net Sec.1231 gains that can be offset by corporate capital losses.
be a Sec. 1231 gain. However, a corporate taxpayer reports $2,121 of gain as ordinary income. These amounts are summarized below: Land Amount of gain: Sales price Minus: adjusted basis Recognized gain Character of gain: Ordinary income Sec. 1231 gain Recognized gain
a0.20
Building $110,000 (89,394) $ 20,606 $ 2,121a 18,485
Total $155,000 (114,394) $ 40,606 $ 2,121 38,485
$45,000 (25,000) $20,000 $ 0 20,000 $20,000
$ 20,606
$ 40,606
lesser of $10,606 depreciation claimed or $20,606 recognized gain.
BUSINESS EXPENSES Corporations are allowed deductions for ordinary and necessary business expenses, including salaries paid to officers and other employees of the corporation, rent, repairs, insurance premiums, advertising, interest, taxes, losses on sales of inventory or other property, bad debts, and depreciation. No deductions are allowed, however, for interest on amounts borrowed to purchase tax-exempt securities, illegal bribes or kickbacks, fines or penalties imposed by a government, or insurance premiums incurred to insure the lives of officers and employees when the corporation is the beneficiary.
ORGANIZATIONAL EXPENDITURES. When formed, a corporation may incur some organizational expenditures such as legal fees and accounting fees incident to the incorporation process. These expenditures normally must be capitalized. Nevertheless, under Sec. 248, a corporation may elect to deduct the first $5,000 of organizational expenditures. However, the corporation must reduce the $5,000 by the amount by which cumulative organizational expenditures exceed $50,000 although the $5,000 cannot be reduced below zero. The corporation can amortize the remaining organizational expenditures over a 180month period beginning in the month it begins business.
EXAMPLE C:3-5 Sigma Corporation incorporates on January 10 of the current year, and begins business on March 3. Sigma elects a September 30 year-end. Thus, it conducts business for seven months during its first tax year. During the period January 10 through September 30, Sigma incurs $52,000 of organizational expenditures. Because these expenditures exceed $50,000, Sigma must reduce the first $5,000 by $2,000 ($52,000 $50,000), leaving a $3,000 deduction. Sigma amortizes the remaining $49,000 ($52,000 $3,000) over 180 months beginning in March of its first year. This portion of the deduction equals $1,906 ($49,000/180 7 months). Accordingly, its total first-year deduction is $4,906 ($3,000 $1,906).
WH AT
electricians union. Technically, these payments are illegal. However, your client says that everyone in this business needs to pay kickbacks to obtain contracts and to have enough electricians to finish the projects in a timely manner. He maintains that it is impossible to stay in business without making these payments. In preparing its tax return, your client wants you to deduct these expenses. What is your opinion concerning the clients request?
You are a CPA with a medium-size accounting firm. One of your corporate clients is an electrical contractor in New York City. The client is successful and had $10 million of sales last year. The contracts involve private and government electrical work. Among the corporations expenses are $400,000 of kickbacks paid to people working for general contractors who award electrical subcontracts to the corporation, and $100,000 of payments to individuals in the
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Most corporations amortize organizational expenditures for tax purposes over the specified period. For financial accounting purposes, they are expensed currently under ASC 720-15. Thus, the differential treatment creates a deferred tax asset.
For organizational expenditures paid or incurred after September 8, 2008, a corporation is deemed to have made the Sec. 248 election for the tax year the corporation begins business.13 A corporation also can apply the amortization provisions for expenditures made after October 22, 2004, provided the statute of limitations is still open for the particular year. If the corporation chooses to forgo the deemed election, it can elect to capitalize the expenditures (without amortization) on a timely filed tax return for the tax year the corporation begins business. Either election, to amortize or capitalize, is irrevocable and applies to all organizational expenditures of the corporation. A corporation begins business when it starts the business operations for which it was organized. Merely coming into existence is not sufficient. For example, obtaining a corporate charter does not in itself establish the beginning of business. However, acquiring assets necessary for operating the business may be sufficient. Organizational expenditures include expenditures incident to the corporations creation; chargeable to the corporations capital account; and of a character that, if expended incident to the creation of a corporation having a limited life, would be amortizable over that life. Specific organizational expenditures include Legal services incident to the corporations organization (e.g., drafting the corporate charter and bylaws, minutes of organizational meetings, and terms of original stock certificates) Accounting services necessary to create the corporation Expenses of temporary directors and of organizational meetings of directors and stockholders Fees paid to the state of incorporation14 Organizational expenditures do not include expenditures connected with issuing or selling the corporations stock or other securities (e.g., commissions, professional fees, and printing costs) and expenditures related to the transfer of assets to the corporation.
EXAMPLE C:3-6
Omega Corporation incorporates on July 12 of the current year, starts business operations on August 10, and elects a tax year ending on September 30. Omega incurs the following expenditures while organizing the corporation: Date June 10 July 17 July 18 July 20 August 25 Type of Expenditure Legal expenses to draft charter Commission to stockbroker for issuing and selling stock Accounting fees to set up corporate books Temporary directors fees Directors fees Amount $ 2,000 40,000 2,400 1,000 1,500
Omegas first tax year begins July 12 and ends on September 30. Omega has organizational expenditures of $5,400 ($2,000 $2,400 $1,000). The commission for selling the Omega stock is treated as a reduction in the amount of Omegas paid-in capital. Omega deducts the directors fees incurred in August as a trade or business expense under Sec. 162 because Omega had begun business operations by that date. Assuming a deemed election to amortize its organizational expenditures, Omega can deduct $5,000 in its first tax year and amortize the remaining $400 over 180 months. Thus, its first year deduction is $5,004 [$5,000 ($400/180) 2 months]. The following table summarizes the classification of expenditures: Type of Expenditure Date June 10 July 17 July 18 July 20 August 25 Expenditure Legal Commission Accounting Temporary directors fees Directors fees Total Amount $ 2,000 40,000 2,400 1,000 1,500 $46,900 Organizational $2,000 $40,000 2,400 1,000 $1,500 $5,400 $40,000 $1,500 Capital Business
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13
Temp. Reg. Sec. 1.148-1T.
14
Reg. Sec. 1.248-1(b)(2).

For tax purposes, a corporation amortizes start-up expenditures over 180 months (after the initial deduction). ASC 915 holds that the financial accounting practices and reporting standards used for development stage businesses should be no different for an established business. The two different sets of rules can lead to different reporting for tax and book purposes.
START-UP EXPENDITURES. A distinction must be made between a corporations organizational expenditures and its start-up expenditures. Start-up expenditures are ordinary and necessary business expenses paid or incurred by an individual or corporate taxpayer To investigate the creation or acquisition of an active trade or business To create an active trade or business To conduct an activity engaged in for profit or the production of income before the time the activity becomes an active trade or business Examples of start-up expenditures include the costs for a survey of potential markets; an analysis of available facilities; advertisements relating to opening the business; the training of employees; travel and other expenses for securing prospective distributors, suppliers, or customers; and the hiring of management personnel and outside consultants. The expenditures must be such that, if incurred in connection with the operation of an existing active trade or business, they would be allowable as a deduction in the year paid or incurred. Under Sec. 195, a corporation may elect to deduct the first $5,000 of start-up expenditures. However, this amount is reduced (but not below zero) by the amount by which the cumulative start-up expenditures exceed $50,000. The corporation can amortize the remaining start-up expenditures over a 180-month period beginning in the month it begins business. For start-up expenditures paid or incurred after September 8, 2008, a corporation is deemed to have made the Sec. 195 election for the tax year the business to which the expenditures relate begins.15 A corporation also can apply the amortization provisions for expenditures made after October 22, 2004, provided the statute of limitations is still open for the particular year. If the corporation chooses to forgo the deemed election, it can elect to capitalize the expenditures (without amortization) on a timely filed tax return for the tax year the business to which the expenditures relate begins. Either election, to amortize or capitalize, is irrevocable and applies to all start-up expenditures related to the business.
ADDITIONAL COMMENT
For 2010, a corporation could deduct up to $10,000 in the first year, with reduction beginning after $60,000.
STOP & THINK Question: What is the difference between an organizational expenditure and a start-up
expenditure? Solution: Organizational expenditures are outlays made in forming a corporation, such as fees paid to the state of incorporation for the corporate chapter and fees paid to an attorney to draft the documents needed to form the corporation. Start-up expenditures are outlays that otherwise would be deductible as ordinary and necessary business expenses but that are capitalized because they were incurred prior to the start of the corporations business activities. A corporation may elect to deduct the first $5,000 of organizational expenditures and the first $5,000 of start-up expenditures. The corporation can amortize the remainder of each set of expenditures over 180 months. Like a corporation, a partnership can deduct and amortize its organizational and start-up expenditures. A sole proprietorship may incur start-up expenditures, but sole proprietorships do not incur organizational expenditures. LIMITATION ON DEDUCTIONS FOR ACCRUED COMPENSATION. If a corporation accrues an obligation to pay compensation, the corporation must make the payment within 212 months after the close of its tax year. Otherwise, the deduction cannot be taken until the year of payment.16 The reason is that, if a payment is delayed beyond 212 months, the IRS treats it as a deferred compensation plan. Deferred compensation cannot be deducted until the year the corporation pays it and the recipient includes the payment in income.17
EXAMPLE C:3-7 On December 10 of the current year, Bell Corporation, a calendar year taxpayer, accrues an obligation for a $100,000 bonus to Marge, a sales representative who has had an outstanding year. Marge owns no Bell stock. Bell must make the payment by March 15 of next year. Otherwise, Bell Corporation cannot deduct the $100,000 in its current year tax return but must wait until the year it pays the bonus.
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15 16
Temp. Reg. Sec. 1.195-1T. Temp. Reg. Sec. 1.404(b)-1T.
17
Sec. 404(b).
CHARITABLE CONTRIBUTIONS. The treatment of charitable contributions by individual and corporate taxpayers differs in three ways: the timing of the deduction, the amount of the deduction permitted for the contribution of certain noncash property, and the maximum deduction permitted in any given year. Timing of the Deduction. Corporations may deduct contributions to qualified charitable organizations. Generally, the contribution must have been paid during the year (not just pledged) for a deduction to be allowed for a given year. A special rule, however, applies to corporations using the accrual method of accounting (corporations using the cash or hybrid methods of accounting are not eligible).18 These corporations may elect to treat part or all of a charitable contribution as having been made in the year it accrued (instead of the year paid) if The board of directors authorizes the contribution in the year it accrued The corporation pays the contribution on or before the fifteenth day of the third month following the end of the accrual year. The corporation makes the election by deducting the contribution in its tax return for the accrual year and by attaching a copy of the board of directors resolution to the return. Any portion of the contribution for which the corporation does not make the election is deducted in the year paid.
EXAMPLE C:3-8 Echo Corporation is a calendar year taxpayer using the accrual method of accounting. In the current year, its board of directors authorizes a $10,000 contribution to the Girl Scouts. Echo pays the contribution on March 10 of next year. Echo may elect to treat part or all of the contribution as having been paid in the current year. If the corporation pays the contribution after March 15 of next year, it may not deduct the contribution in the current year but may deduct it next year.
TAX STRATEGY TIP

The tax laws do not require a corporation to recognize a gain when it contributes appreciated property to a charitable organization. Thus, except for inventory and limited other properties, a corporation can deduct the FMV of its donation without having to recognize any appreciation in its gross income. On the other hand, a decline in the value of donated property is not deductible. Thus, the corporation should sell the loss property to recognize the loss and then donate the sales proceeds to the chariable organization.
Deducting Contributions of Nonmonetary Property. If a taxpayer donates money to a qualified charitable organization, the amount of the charitable contribution deduction equals the amount of money donated. If the taxpayer donates property, the amount of the charitable contribution deduction generally equals the propertys fair market value (FMV). However, special rules apply to donations of appreciated nonmonetary property known as ordinary income property and capital gain property.19 In this context, ordinary income property is property whose sale would have resulted in a gain other than a long-term capital gain (i.e., ordinary income or short-term capital gain). Examples of ordinary income property include investment property held for one year or less, inventory property, and property subject to depreciation recapture under Secs. 1245 and 1250. The deduction allowed for a donation of such property is limited to the propertys FMV minus the amount of ordinary income or short-term capital gain the corporation would have recognized had it sold the property. In three special cases, a corporation may deduct the donated propertys adjusted basis plus one-half of the excess of the propertys FMV over its adjusted basis (not to exceed twice the propertys adjusted basis). This special rule applies to inventory if 1. The use of the property is related to the donees exempt function, and it is used solely for the care of the ill, the needy, or infants; 2. The property is not transferred to the donee in exchange for money, other property, or services; and 3. The donor receives a statement from the charitable organization stating that conditions (1) and (2) will be complied with. A similar rule applies to contributions of scientific research property if the corporation created the property and contributed it to a college, university, or tax-exempt scientific research organization for its use within two years of creating the property.
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EXAMPLE C:3-9
King Corporation donates inventory having a $26,000 adjusted basis and a $40,000 FMV to a qualified public charity. A $33,000 [$26,000 (0.50 $14,000)] deduction is allowed for the
18
Sec. 170(a).
19
Sec. 170(e).

ADDITIONAL COMMENT
The IRC also has special rules pertaining to contributions of computer equipment, book inventory, and wholesome food inventory. Unless extended, these rules apply only through 2011.
contribution of the inventory if the charitable organization will use the inventory for the care of the ill, needy, or infants, or if the donee is an educational institution or research organization that will use the scientific research property for research or experimentation. Otherwise, the deduction is limited to the propertys $26,000 adjusted basis. If instead the inventorys FMV is $100,000 and the donation meets either of the two sets of requirements outlined above, the charitable contribution deduction is limited to $52,000, the lesser of the propertys adjusted basis plus one-half of the appreciation [$63,000 $26,000 (0.50 $74,000)] or twice the propertys adjusted basis ($52,000 $26,000 2).
When a corporation donates appreciated property whose sale would result in long-term capital gain (also known as capital gain property) to a charitable organization, the amount of the contribution deduction generally equals the propertys FMV. However, special restrictions apply if The corporation donates a patent, copyright, trademark, trade name, trade secret, know-how, certain software, or other similar property; A corporation donates tangible personal property to a charitable organization and the organizations use of the property is unrelated to its tax-exempt purpose; or A corporation donates appreciated property to certain private nonoperating foundations.20 In these cases, the amount of the corporations contribution is limited to the propertys FMV minus the long-term capital gain that would have resulted from the propertys sale.
EXAMPLE C:3-10 Fox Corporation donates artwork to the MacNay Museum. The artwork, purchased two years earlier for $15,000, is worth $38,000 on the date Fox donates it. At the time of the donation, the museums directors intend to sell the work to raise funds to conduct museum activities. Foxs deduction for the gift is limited to $15,000. If the museum plans to display the artwork to the public, the entire $38,000 deduction is permitted. Fox can avoid losing a portion of its charitable contribution deduction by, as a condition of the donation, placing restrictions on the sale or use of the property.
Substantiation Requirements. Section 170(f)(11) imposes substantiation requirements for noncash charitable contributions. If the corporation does not comply, it will lose the charitable contribution deduction. The requirements are as follows: If the contribution deduction exceeds $500, the corporation must include with its tax return a description of the property and any other information required by Treasury Regulations. If the contribution deduction exceeds $5,000, the corporation must obtain a qualified appraisal and include with its tax return any information and appraisal required by Treasury Regulations. (Current regulations require an appraisal summary.) If the contribution deduction exceeds $500,000, the corporation must attach a qualified appraisal to the tax return. The second and third requirements, however, do not apply to contributions of cash; publicly traded securities; inventory; or certain motor vehicles, boats, or aircraft the donee organization sells without any intervening use or material improvement. With regard to these vehicles, the donor corporations deduction is limited to the amount of gross proceeds the donee organization receives on the sale. Maximum Deduction Permitted. A limit applies to the amount of charitable contributions a corporation can deduct in a given year. The limit is calculated differently for corporations than for individuals. Contribution deductions by corporations are limited to 10% of adjusted taxable income. Adjusted taxable income is the corporations taxable income computed without regard to any of the following amounts:
20 Sec. 170(e)(5). The restriction on contributions of appreciated property to private nonoperating foundations does not apply to contributions of stock for which market quotations are readily available.
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For financial accounting purposes, all charitable contributions can be claimed as an expense without regard to the amount of profits reported. For tax purposes, however, the charitable contribution deduction may be limited. Thus, the charitable contribution carryover for tax purposes creates a deferred tax asset, possibly subject to a valuation allowance.
The charitable contribution deduction An NOL carryback A capital loss carryback The dividends-received deduction21 The U.S. production activities deduction Contributions that exceed the 10% limit are not deductible in the current year. Instead, they carry forward to the next five tax years. Any excess contributions not deducted within those five years expire. The corporation may deduct excess contributions in the carryover year only after it deducts any contributions made in that year. The total charitable contribution deduction (including any deduction for contribution carryovers) is limited to 10% of the corporations adjusted taxable income in the carryover year.22
Golf Corporation reports the following results in Year 1 and Year 2: Year 1 Adjusted taxable income Charitable contributions $200,000 35,000 Year 2 $300,000 25,000
EXAMPLE C:3-11
Golfs Year 1 contribution deduction is limited to $20,000 (0.10 $200,000). Golf has a $15,000 ($35,000 $20,000) contribution carryover to Year 2. The Year 2 contribution deduction is limited to $30,000 (0.10 $300,000). Golfs deduction for Year 2 is composed of the $25,000 donated in Year 2 and $5,000 of the Year 1 carryover. The remaining $10,000 carryover from Year 1 carries over to the next four years.
Topic Review C:3-1 summarizes the basic corporate charitable contribution deduction rules.
Topic Review C:3-1
Corporate Charitable Contribution Rules

1. Timing of the contribution deduction a. General rule: A deduction is allowed for contributions paid during the year. b. Accrual method corporations can accrue contributions approved by their board of directors prior to the end of the accrual year and paid within 212 months of that year-end. 2. Amount of the contribution deduction a. General rule: A deduction is allowed for the amount of money and the FMV of other property donated. b. Exceptions for ordinary income property: 1. If donated property would result in ordinary income or short-term capital gain if sold, the deduction is limited to the propertys FMV minus this potential ordinary income or short-term capital gain. Thus, for gain property the deduction equals the propertys cost or adjusted basis. 2. Special rule: For donations of (1) inventory used for the care of the ill, needy, or infants or (2) scientific research property or computer technology and equipment to certain educational institutions, a corporate donor may deduct the propertys basis plus one-half of the excess of the propertys FMV over its adjusted basis. The deduction may not exceed twice the propertys adjusted basis. c. Exceptions for capital gain property: If the corporation donates tangible personal property to a charitable organization for a use unrelated to its tax-exempt purpose, or the corporation donates appreciated property to a private nonoperating foundation, the corporations contribution is limited to the propertys FMV minus the long-term capital gain that would result if the corporation sold the property. 3. Limitation on contribution deduction a. The contribution deduction is limited to 10% of the corporations taxable income computed without regard to the charitable contribution deduction, any NOL or capital loss carryback, the dividends-received deduction, and the U.S production activities deduction. b. Excess contributions carry forward for a five-year period.
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21
Sec. 170(b)(2).
22
Sec. 170(d)(2).
SPECIAL DEDUCTIONS C corporations are allowed three special deductions: the U.S. production activities deduction, the dividends-received deduction, and the NOL deduction.
ADDITIONAL COMMENT
While discussed in this text under special deductions, the U.S. production activities deduction actually appears before Line 28 on Form 1120. This deduction also is referred to as the domestic production activities deduction or the manufacturing deduction.
U.S. PRODUCTION ACTIVITIES DEDUCTION. Section 199 allows a U.S. production activities deduction equal to 9% (in 2010 and thereafter) times the lesser of (1) qualified production activities income for the year or (2) taxable income before the U.S. production activities deduction. The deduction, however, cannot exceed 50% of the corporations W-2 wages allocable to qualifying U.S. production activities for the year. Qualified production activities income is the taxpayers domestic production gross receipts less the following amounts: Cost of goods sold allocable to these receipts; Other deductions, expenses, and losses directly allocable to these receipts; and A ratable portion of other deductions, expenses, and losses not directly allocable to these receipts or to other classes of income. Domestic production gross receipts include receipts from the following taxpayer activities: The lease, rental, license, sale, exchange, or other disposition of (1) qualified production property (tangible property, computer software, and sound recordings) manufactured, produced, grown, or extracted in whole or significant part within the United States; (2) qualified film production; or (3) electricity, natural gas, or potable water produced within the United States Construction performed in the United States Engineering or architectural services performed in the United States for construction projects in the United States

The U.S. production activities deduction is not expensed for financial accounting purposes. Thus, it creates a permanent difference that affects the corportions effective tax rate but not its deferred taxes.
ADDITIONAL COMMENT
In addition to providing a benefit, the U.S. production activities deduction will increase a corporations compliance costs because of the time necessary to determine what income and deductions pertain to U.S. production activities.
Domestic production gross receipts, however, do not include receipts from the sale of food and beverages the taxpayer prepares at a retail establishment and do not apply to the transmission of electricity, natural gas, or potable water. The U.S. production activities deduction has the effect of reducing a corporations marginal tax rate on qualifying taxable income. For example, a 9% deduction for a corporation in the 35% tax bracket decreases the corporations marginal tax rate by about 3% (0.09 35% 3.15%).
Gamma Corporation earns domestic production gross receipts of $1 million and incurs allocable expenses of $400,000. Thus, its qualified production activities income is $600,000. In addition, Gamma has $200,000 of income from other sources, resulting in taxable income of $800,000 before the U.S. production activities deduction. Its U.S. production activities deduction, therefore, is $54,000 ($600,000 0.09), and its taxable income is $746,000 ($800,000 $54,000). Assume the same facts as in Example C:3-12 except Gamma has $100,000 of losses from other sources rather than $200,000 of other income, resulting in taxable income of $500,000 before the U.S. production activities deduction. In this case, its U.S. production activities deduction is $45,000 ($500,000 0.09), and its taxable income is $455,000 ($500,000 $45,000).
EXAMPLE C:3-12
EXAMPLE C:3-13
DIVIDENDS-RECEIVED DEDUCTION. A corporation must include in its gross income any dividends received on stock it owns in another corporation. As described in Chapter C:2, the taxation of dividend payments to a shareholder generally results in double taxation. When a distributing corporation pays a dividend to a corporate shareholder and the recipient corporation subsequently distributes these earnings to its shareholders, potential triple taxation of the earnings can result.
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The Corporate Income Tax Corporations 3-15 EXAMPLE C:3-14 Adobe Corporation owns stock in Bell Corporation. Bell reports taxable income of $100,000 and pays federal income taxes on its income. Bell distributes its after-tax income to its shareholders. The dividend Adobe receives from Bell must be included in its gross income and, to the extent it reports a profit for the year, Adobe will pay taxes on the dividend. Adobe distributes its remaining after-tax income to its shareholders. The shareholders must include Adobes dividends in their gross income and pay federal income taxes on the distribution. Thus, Bells income in this example potentially is taxed three times.

A corporation includes dividends in its financial accounting income but does not subtract a dividendsreceived deduction in determining its book net income. Thus, the dividends-received deduction creates a permanent difference that affects the corporations effective tax rate but not its deferred taxes.
To partially mitigate the effects of multiple taxation, corporations are allowed a dividends-received deduction for dividends received from other domestic corporations and from certain foreign corporations. General Rule for Dividends-Received Deduction. Corporations that own less than 20% of the distributing corporations stock may deduct 70% of the dividends received. If the shareholder corporation owns 20% or more of the distributing corporations stock (both voting power and value) but less than 80% of such stock, it may deduct 80% of the dividends received.23
Hale Corporation reports the following results in the current year: Gross income from operations Dividends from 15%-owned domestic corporation Operating expenses $300,000 100,000 280,000
EXAMPLE C:3-15
Gross income from operations and expenses both pertain to qualified production activities, so Hales qualified production activities income is $20,000 ($300,000 $280,000). Hales dividends-received deduction is $70,000 (0.70 $100,000). Thus, Hales taxable income is computed as follows: Gross income Minus: Operating expenses Taxable income before special deductions Minus: Dividends-received deduction Taxable income before the U.S. production activites deduction Minus: U.S. production activities deduction ($20,000 0.09) Taxable income $400,000 (280,000) $120,000 (70,000) $ 50,000 (1,800) $ 48,200
Limitation on Dividends-Received Deduction. In the case of dividends received from corporations that are less than 20% owned, the deduction is limited to the lesser of 70% of dividends received or 70% of taxable income computed without regard to any NOL deduction, any capital loss carryback, the dividends-received deduction itself, or the U.S. production activities deduction.24 In the case of dividends received from a 20% or more owned corporation, the dividends-received deduction is limited to the lesser of 80% of dividends received or 80% of taxable income computed without regard to the same deductions.
EXAMPLE C:3-16 Assume the same facts as in Example C:3-15 except Hale Corporations operating expenses for the year are $310,000 and that qualified production activities income is zero (or negative). Thus, the corporation cannot claim the U.S. production activities deduction. Hales taxable income before the dividends-received deduction is $90,000 ($300,000 $100,000 $310,000). The dividends-received deduction is limited to the lesser of 70% of dividends received ($70,000 $100,000 0.70) or 70% of taxable income before the dividends-received deduction ($63,000 $90,000 0.70). Thus, the dividends-received deduction is $63,000. Hales taxable income is $27,000 ($90,000 $63,000).
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A corporation that receives dividends eligible for both the 80% dividends-received deduction and the 70% dividends-received deduction must compute the 80% dividendsreceived deduction first and then reduce taxable income by the aggregate amount of dividends eligible for the 80% deduction before computing the 70% deduction.
23
Secs. 243(a) and (c).
24
Sec. 246(b).
3-16 Corporations Chapter 3 EXAMPLE C:3-17 Assume the same facts as in Example C:3-16 except Hale Corporation receives $75,000 of the dividends from a 25%-owned corporation and the remaining $25,000 from a 15%-owned corporation. The tentative dividends-received deduction from the 25%-owned corporation is $60,000 ($75,000 0.80), which is less than the $72,000 ($90,000 0.80) limitation. Thus, Hale can deduct the entire $60,000. The tentative dividends-received deduction from the 15%-owned corporation is $17,500 ($25,000 .70). The limitation, however, is $10,500 [($90,000 $75,000) 0.70]. Note that, in computing this limitation, Hale reduces its taxable income by the entire $75,000 dividend received from the 25%-owned corporation. Thus, Hale can deduct only $10,500 of the $17,500 amount. Hales taxable income is $19,500 ($90,000 $60,000 $10,500).
Exception to the Limitation. The taxable income limitation on the dividends-received deduction does not apply if, after taking into account the full dividends-received deduction, the corporation has an NOL for the year.
EXAMPLE C:3-18 Assume the same facts as in Example C:3-16 except Hale Corporations operating expenses for the year are $331,000. Hales taxable income before the dividends-received deduction is $69,000 ($300,000 $100,000 $331,000). The tentative dividends-received deduction is $70,000 (0.70 $100,000). Hales dividends-received deduction is not restricted by the limitation of 70% of taxable income before the dividends-received deduction because, after taking into account the tentative $70,000 dividends-received deduction, the corporation has a $1,000 ($69,000 $70,000) NOL for the year.
The following table compares the results of Examples C:3-15, C:3-16, and C:3-18:
ADDITIONAL COMMENT
When the dividends-received deduction creates (or increases) an NOL, the corporation gets the full benefit of the deduction because it can carry back or carry forward the NOL.
Example C:3-15
Example C:3-16
Example C:3-18
TAX STRATEGY TIP

A corporation can avoid the dividends-received deduction limitation either by (1) increasing its taxable income before the dividends-received deduction so the limitation exceeds the tentative dividends-received deduction or (2) decreasing its taxable income before the dividends-received deduction so the tentative dividends-received deduction creates an NOL.
Gross income Minus: Operating expenses Taxable income before special deductions Minus: Dividends-received deduction U.S. production activities deduction Taxable income (NOL)
$400,000 (280,000) $120,000 (70,000) (1,800) $ 48,200
$400,000 (310,000) $ 90,000 (63,000) 0 $ 27,000
$400,000 (331,000) $ 69,000 (70,000) 0 $ (1,000)
Of these three examples, the only case where the dividends-received deduction does not equal the full 70% of the $100,000 dividend is Example C:3-16. In that case, the deduction is limited to $63,000 because taxable income before special deductions is less than the $100,000 dividend and because the full $70,000 deduction would not create an NOL. The special exception to the dividends-received deduction can create interesting situations. For example, the additional $21,000 of deductions incurred in Example C:3-18 (as compared to Example C:3-16) resulted in a $28,000 reduction in taxable income. Corporate taxpayers should be aware of these rules and consider deferring income or recognizing expenses to ensure being able to deduct the full 70% or 80% dividends-received deduction. If the taxable income limitation applies, the corporation loses the unused dividends-received deduction. Members of an Affilliated Group. Members of an affiliated group of corporations can claim a 100% dividends-received deduction with respect to dividends received from other group members.25 A group of corporations is affiliated if a parent corporation owns at least 80% of the stock (both voting power and value) of at least one subsidiary corporation, and at least 80% of the stock (both voting power and value) of each other corporation is owned by other group members. The 100% dividends-received deduction is not subject to a taxable income limitation and is taken before the 80% or 70% dividendsreceived deduction.26
ADDITIONAL COMMENT
If the affiliated group files a consolidated tax return, the recipient of the dividend does not claim the 100% dividends received deduction because the intercompany dividend gets eliminated in the consolidation (see Chapter C:8).
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25
Sec. 243(a)(3).
26
Secs. 243(b)(5) and 1504.
The Corporate Income Tax Corporations 3-17 EXAMPLE C:3-19 Hardy Corporation reports the following results for the current year: Gross income from operations Dividend received from an 80%-owned affiliated corporation Dividend received from a 20%-owned corporation Operating expenses $520,000 100,000 250,000 550,000
Hardy does not file a consolidated tax return with the 80%-owned affiliate. Because Hardys qualified production activities income is negative, it cannot claim the U.S. production activities deduction. Hardys taxable income before any dividends-received deduction is $320,000 ($520,000 $100,000 $250,000 $550,000). Hardy can deduct the entire dividend received from the 80%-owned affiliate without limitation. The tentative dividends-received deduction from the 20%-owned corporation is $200,000 ($250,000 0.80). The limitation, however, is $176,000 [($320,000 $100,000) 0.80]. Note that, in computing this limitation, Hardy first reduces its taxable income by the $100,000 dividend received from the 80%-owned affiliate. Thus, Hardy can deduct only $176,000 of the $200,000 amount. Hardys taxable income is $44,000 ($320,000 $100,000 $176,000).
ADDITIONAL COMMENT
Stock purchased on which a dividend has been declared has an increased value. This value will drop when the corporation pays the dividend. If the dividend is eligible for a dividends-received deduction and the drop in value also creates a capital loss, corporate shareholders could use this event as a tax planning device. To avoid this result, no dividendsreceived deduction is available for stock held 45 days or less.
Dividends Received from Foreign Corporations. The dividends-received deduction applies primarily to dividends received from domestic corporations. The dividendsreceived deduction does not apply to dividends received from a foreign corporation because the U.S. Government does not tax its income. Thus, that income is not subject to the multiple taxation illustrated above.27 Stock Held 45 Days or Less. A corporation may not claim a dividends-received deduction if it holds the dividend paying stock for less than 46 days during the 91-day period that begins 45 days before the stock becomes ex-dividend with respect to the dividend.28 This rule prevents a corporation from claiming a dividends-received deduction if it purchases stock shortly before an ex-dividend date and sells the stock shortly thereafter. (The ex-dividend date is the first day on which a purchaser of stock is not entitled to a previously declared dividend.) Absent this rule, such a purchase and sale would allow the corporation to receive dividends at a low tax ratea maximum of a 10.5% [(100% 70%) 0.35] effective tax rateand to recognize a capital loss on the sale of stock that could offset capital gains taxed at a 35% tax rate.
Theta Corporation purchases 100 shares of Maine Corporations stock for $100,000 one day before Maines ex-dividend date. Theta receives a $5,000 dividend on the stock and then sells the stock for $95,000 shortly after the dividend payment date. Because the stock is worth $100,000 immediately before the $5,000 dividend payment, its value drops to $95,000 ($100,000 $5,000) immediately after the dividend. The sale results in a $5,000 ($100,000 $95,000) capital loss that may offset a $5,000 capital gain. Assuming a 35% corporate tax rate, the following table summarizes the profit (loss) to Theta with and without the 45-day rule. If Deduction Is Allowed Dividends Minus: 35% tax on dividend Dividend (after taxes) Capital loss Minus: 35% tax savings on loss Net loss on stock Dividend (after taxes) Minus: Net loss on stockb $5,000 (525)a $4,475 $5,000 (1,750) $3,250 $4,475 (3,250) $1,225 If Deduction Is Not Allowed $5,000 (1,750) $3,250 $5,000 (1,750) $3,250 $3,250 (3,250) $ 0
EXAMPLE C:3-20
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Net profit (loss)

a[$5,000 bThis
(0.70 $5,000)] 0.35 $525 example assumes the corporation has capital gains against which to deduct this capital loss.
28
27 Sec. 245. A limited dividends-received deduction is allowed on dividends received from a foreign corporation that earns income by conducting a trade or business in the United States and, therefore, is subject to U.S. taxes.
Sec. 246(c)(1).

ADDITIONAL COMMENT
Borrowing money with deductible interest to purchase a tax-advantaged asset, such as stock eligible for the dividends-received deduction, is an example of tax arbitrage. Many provisions in the IRC, such as the limits on debtfinancial stock, are aimed at curtailing tax arbitrage transactions.
The profit is not available if Theta sells the stock shortly after receiving the dividend because Theta must hold the Maine stock for at least 46 days to obtain the dividendsreceived deduction.
Debt-Financed Stock. The dividends-received deduction is not allowed to the extent the corporation borrows money to acquire the dividend paying stock.29 This rule prevents a corporation from deducting interest paid on money borrowed to purchase the stock, while paying little or no tax on the dividends received on the stock.
Palmer Corporation, whose marginal tax rate is 35%, borrows $100,000 at a 10% interest rate to purchase 30% of Sun Corporations stock. The Sun stock pays an $8,000 annual dividend. If a dividends-received deduction were allowed for this investment, Palmer would have a net profit of $940 annually on owning the Sun stock even though the dividend received is less than the interest paid. The following table summarizes the profit (loss) to Palmer with and without the debt-financing rule. If Deduction Is Allowed Dividends Minus: 35% tax on dividend Dividend (after taxes) Interest paid Minus: 35% tax savings on deduction Net cost of borrowing Dividend (after taxes) Minus: Net cost of borrowing Net profit (loss)
a[$8,000
EXAMPLE C:3-21
REAL-WORLD EXAMPLE
Although sound in theory, the debt-financed stock limitation may be difficult to apply in practice. This difficulty became particularly apparent in a district court case, OBH, Inc. v. U.S., 96 AFTR 2d, 2005-6801, 2005-2 USTC 50,627 (DC NB, 2005), where the IRS failed to establish that a corporations debt proceeds were directly traceable to the acquisition of dividend paying stock.
If Deduction Is Not Allowed $ 8,000 (2,800) $5,200 $10,000 (3,500) $6,500 $ 5,200 (6,500) $(1,300)
$ 8,000 (560)a $ 7,440 $10,000 (3,500) $ 6,500 $ 7,440 (6,500) $ 940
($8,000
0.80)]
0.35
$560
This example illustrates how the rule disallowing the dividends-received deduction on debtfinanced stock prevents corporations from making an after-tax profit by borrowing funds to purchase stocks paying dividends that are less than the cost of the borrowing.
ADDITIONAL COMMENT
Recent tax acts allow eligible businesses having a calendar year to carry back applicable NOLs three, four, or five years instead of two years if the business so elects. An applicable NOL is one arising in a tax year ending after 2007 and before 2010. The business can make the election with respect to only one year, however.
NET OPERATING LOSSES (NOLs). If a corporations deductions exceed its gross income for the year, the corporation has a net operating loss (NOL). The NOL is the amount by which the corporations deductions (including any dividends-received deduction) exceed its gross income.30 In computing an NOL for a given year, no deduction is permitted for a carryover or carryback of an NOL from a preceding or succeeding year. However, unlike an individuals NOL, no other adjustments are required to compute a corporations NOL. If the corporation has an NOL, it also would not be allowed a U.S. production activities deduction because it has no positive taxable income. A corporations NOL carries back two years (or an extended period if applicable) and carries over 20 years. It carries to the earliest of the two preceding years first and offsets taxable income reported in that year. If the loss cannot be used in that year, it carries to the immediately preceding year, and then to the next 20 years in chronological order. The corporation may elect to forgo the carryback period entirely and instead carry over the entire loss to the next 20 years.31
In 2011, Gray Corporation, a calendar year taxpayer, has gross income of $150,000 (including $100,000 from operations and $50,000 in dividends from a 30%-owned domestic corporation) and $180,000 of expenses. Gray has a $70,000 [$150,000 $180,000 (0.80 $50,000)] NOL. The NOL carries back to 2009 unless Gray elects to forego the carryback period. If Gray had
EXAMPLE C:3-22
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Sec. 246A. Sec. 172(c). 31 The two year carryback and 20-year carryforward applies to NOLs incurred in tax years beginning after August 5, 1997. The change does not
30
29
apply to NOLs carried forward from earlier years. These NOLs, in general, carried back three years and carried forward 15 years. NOLs incurred in 2001 and 2002 were allowed a five-year carryback period.
The Corporate Income Tax Corporations 3-19 $20,000 of taxable income in 2009, $20,000 of Grays 2011 NOL offsets that income. Gray receives a refund of all taxes paid in 2009. Gray carries the remaining $50,000 of the 2011 NOL to 2010. Any of the NOL not used in 2010 carries over to 2012
An NOL carryover for tax purposes creates a deferred tax asset, possibly subject to a valuation allowance.
A corporation might elect not to carry an NOL back because its income was taxed at a low marginal tax rate in the carryback period and the corporation anticipates income being taxed at a higher marginal tax rate in later years or because it used tax credit carryovers in the earlier year that were about to expire. The corporation must make this election for the entire carryback by the due date (including extensions) for filing the return for the year in which the corporation incurred the NOL. The corporation makes the election by checking a box on Form 1120 when it files the return. Once made for a tax year, the election is irrevocable.32 However, if the corporation incurs an NOL in another year, the decision as to whether that NOL should be carried back is a separate decision. In other words, each years NOL is treated separately and is subject to a separate election. To obtain a refund due to carrying an NOL back to a preceding year, a corporation files Form 1139 (Corporation Application for a Tentative Refund) if one year or less has elapsed since the year in which the NOL occurred. If a longer period has elapsed, the corporation files Form 1120X (Amended U.S. Corporation Income Tax Return). THE SEQUENCING OF THE DEDUCTION CALCULATIONS. The rules for charitable contributions, dividends-received, NOL, and U.S. production activities deductions require that these deductions be calculated in the following sequence: 1. All deductions other than the charitable contributions deduction, the dividendsreceived deduction, the NOL deduction, and the U.S. production activities deduction 2. The charitable contributions deduction 3. The dividends-received deduction 4. The NOL deduction 5. The U.S. production activities deduction As stated previously, the charitable contributions deduction is limited to 10% of taxable income before the charitable contributions deduction, any NOL or capital loss carryback, the dividends-received deduction, or the U.S. production activities deduction, but after any NOL carryover deduction. Once the corporation determines its charitable contributions deduction, it adds back any NOL carryover deduction and subtracts the charitable contributions deduction before computing the dividends-received deduction. The corporation then subtracts the NOL deduction, if any, before determining its U.S. production activities deduction.
EXAMPLE C:3-23
East Corporation reports the following results for 2011: Gross income from operations Dividends from 30%-owned domestic corporation Operating expenses Charitable contributions $150,000 100,000 100,000 35,000
In addition, East has $50,000 of qualified production activities income in the current year and a $40,000 NOL carryover from the previous year. Easts charitable contributions deduction is computed as follows: Gross income from operations Plus: Dividends Gross income Minus: Operating expenses NOL carryover
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$150,000 100,000 $250,000 (100,000) (40,000) $110,000
Base for calculation of the charitable contributions limitation
Easts charitable contributions deduction is limited to $11,000 (0.10 $110,000). The $11,000 limitation means that East has a $24,000 ($35,000 $11,000) excess contribution that carries over for five years. East Corporation computes its taxable income as follows:
32
Sec. 172(b)(3)(C).

ADDITIONAL COMMENT
The U.S. production activities deduction is last in the ordering of deductions because it is limited to taxable income after all other deductions. However, on the corporate tax return, it appears after the charitable contributions deduction but before the dividends-received and NOL deductions. Specifically, it appears on Form 1120, Line 25, before Line 28.
Gross income Minus: Operating expenses Charitable contributions deduction Taxable income before special deductions Minus: Dividends-received deduction ($100,000 NOL carryover deduction 0.80)
$250,000 (100,000) (11,000) $139,000 (80,000) (40,000) $ 19,000 (1,710) $ 17,290
Taxable income before the U.S. production activities deduction Minus: U.S. production activities deduction ($19,000 0.09) Taxable income
Note that, if an NOL carries back from a later year, it is not taken into account in computing a corporations charitable contributions limitation. In other words, the contribution deduction remains the same as in the year of the original return.
Assume the same facts as in Example C:3-23, except the facts pertain to a prior year (e.g., 2009), and East carries back a $40,000 NOL to that year. Easts base for calculation of the charitable contributions limitation was computed as follows when it filed the original return: Gross income from operations Plus: Dividends Gross income Minus: Operating expenses Base for calculation of the charitable contributions limitation $150,000 100,000 $250,000 (100,000) $150,000
EXAMPLE C:3-24
ADDITIONAL COMMENT
These computations in the carryback year are done on an amended return or an application for refund.
Easts charitable contributions deduction was limited to $15,000 ($150,000 0.10). The $15,000 limitation means that East had a $20,000 ($35,000 $15,000) contribution carryover from the prior year. East Corporation computes its taxable income after the NOL carryback as follows: Gross income ($150,000 $100,000) Minus: Operating expenses Charitable contributions deduction Taxable income before special deductions Minus: Dividends-received deduction ($100,000 NOL carryback deduction 0.80) $250,000 (100,000) (15,000) $135,000 (80,000) (40,000) $ 15,000 (900) $ 14,100
Taxable income before the U.S. production activities deduction Minus: U.S. production activities deduction ($15,000 0.06, the 2009 percentage) Taxable income as recomputed
Thus, Easts prior-year charitable contributions deduction remains the same as originally claimed.
STOP & THINK Question: Why does a corporations NOL or capital loss carryback not affect its
charitable contributions deduction, but yet the corporation must take into account an NOL or capital loss carryover when calculating its charitable contribution limitation? Solution: A carryback affects a tax return already filed in a prior year. If a carryback had to be taken into account when calculating the charitable contribution deduction limitation in the prior year, it might change the amount of the allowable charitable contribution. This change in turn might affect other items such as the carryback years dividendsreceived deduction and some later years deductions as well. For example, assume Alpha Corporation has a $10,000 NOL in 2011 that it carries back to 2009. If the NOL were permitted to reduce Alphas allowable charitable contribution for 2009 by $1,000, Alphas dividends-received deduction for 2009 and its charitable contribution deductions for 2010 as well might change. To avoid these complications, which might force Alpha to amend its tax returns from the carryback year (2009) to the current year (2011), the law states that carrybacks are not taken into account in calculating the charitable contribution deduction limitation. Also, in the prior year, management made its charitable contribution decisions without knowledge of future NOLs. Altering the result of those prior decisions with future events might be unfair.
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E X C E P T I O N S F O R C L O S E LY H E L D C O R P O R AT I O N S Congress has placed limits on certain transactions to prevent abuse in situations where a corporation is closely held. Some of these restrictions are explained below.
TRANSACTIONS BETWEEN A CORPORATION AND ITS SHAREHOLDERS. Special rules apply to transactions between a corporation and a controlling shareholder. Section 1239 may convert a capital gain realized on the sale of depreciable property between a corporation and a controlling shareholder into ordinary income. Section 267(a)(1) denies a deduction for losses realized on property sales between a corporation and a controlling shareholder. Section 267(a)(2) defers a deduction for accrued expenses and interest on certain transactions involving a corporation and a controlling shareholder. In all three of the preceding situations, a controlling shareholder is one who owns more than 50% (in value) of the corporations stock.33 In determining whether a shareholder owns more than 50% of a corporations stock, certain constructive stock ownership rules apply.34 Under these rules, a shareholder is considered to own not only his or her own stock, but stock owned by family members (e.g., brothers, sisters, spouse, ancestors, and lineal descendants) and entities in which the shareholder has an ownership or beneficial interest (e.g., corporations, partnerships, trusts, and estates). Gains on Sale or Exchange Transactions. If a controlling shareholder sells depreciable property to a controlled corporation (or vice versa) and the property is depreciable in the purchasers hands, any gain on the sale is treated as ordinary income under Sec. 1239(a).
EXAMPLE C:3-25 Ann owns all of Cape Corporations stock. Ann sells a building to Cape and recognizes a $25,000 gain, which usually would be Sec. 1231 gain or Sec. 1250 gain taxed (in 2011) at a maximum 15% or 25% capital gains tax rate, respectively. However, because Ann owns more than 50% of the Cape stock and the building is a depreciable property in Capes hands, Sec. 1239 requires that Ann recognize the entire $25,000 gain as ordinary income.

The denial of deductions for losses involving related party transactions is unique to the tax area. Financial accounting rules contain no such disallowance provision.
Losses on Sale or Exchange Transactions. Section 267(a)(1) denies a deduction for losses realized on a sale of property by a corporation to a controlling shareholder or on a sale of property by the controlling shareholder to the corporation. If the purchaser later sells the property to another party at a gain, that seller recognizes gain only to the extent it exceeds the previously disallowed loss.35 Should the purchaser instead sell the property at a loss, the previously disallowed loss is never recognized.
Quattros Corporation sells an automobile to Juan, its sole shareholder, for $6,500. The corporations adjusted basis for the automobile is $8,000. Quattros realizes a $1,500 ($6,500 $8,000) loss on the sale. Section 267(a)(1), however, disallows the loss to the corporation. If Juan later sells the auto for $8,500, he realizes a $2,000 ($8,500 $6,500) gain. He recognizes only $500 of that gain, the amount by which his $2,000 gain exceeds the $1,500 loss previously disallowed to Quattros. If Juan instead sells the auto for $7,500, he realizes a $1,000 ($7,500 $6,500) gain but recognizes no gain or loss. The previously disallowed loss reduces the gain to zero but may not create a loss. Finally, if Juan instead sells the auto for $4,000, he realizes and may be able to recognize a $2,500 ($4,000 $6,500) loss. However, the $1,500 loss previously disallowed to Quattros is permanently lost.
EXAMPLE C:3-26
KEY POINT
Section 267(a)(2) is primarily aimed at the situation involving an accrual method corporation that accrues compensation to a cash method shareholderemployee. This provision forces a matching of the income and expense recognition by deferring the deduction to the year the shareholder recognizes the income.
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Corporation and Controlling Shareholder Using Different Accounting Methods. Section 267(a)(2) defers a deduction for accrued expenses or interest owed by a corporation to a controlling shareholder or by a controlling shareholder to a corporation when the two parties use different accounting methods and the payee thereby includes the amount in gross income later than when the payer accrues the deduction. Under this rule, accrued expenses or interest owed by a corporation to a controlling shareholder may not be deducted until the shareholder includes the payment in gross income.
33 34
Sec. 267(b)(2). Sec. 267(e)(3).
35
Sec. 267(d).
3-22 Corporations Chapter 3 EXAMPLE C:3-27 Hill Corporation uses the accrual method of accounting. Hills sole shareholder, Ruth, uses the cash method of accounting. Both taxpayers use the calendar year as their tax year. The corporation accrues a $25,000 interest payment to Ruth on December 20 of the current year. Hill makes the payment on March 20 of next year. Hill, however, cannot deduct the interest in the current year but must wait until Ruth reports the income next year. Thus, the expense and income are matched.
LOSS LIMITATION RULES At-Risk Rules. If five or fewer shareholders own more than 50% (in value) of a C corporations outstanding stock at any time during the last half of the corporations tax year, the corporation is subject to the at-risk rules.36 In such case, the corporation can deduct losses pertaining to an activity only to the extent the corporation is at risk for that activity at year-end. Any losses not deductible because of the at-risk rules must be carried over and deducted in a succeeding year when the corporations risk with respect to the activity increases. (See Chapter C:9 for additional discussion of the at-risk rules.) Passive Activity Limitation Rules. Personal service corporations (PSCs) and closely held C corporations (those subject to the at-risk rules described above) also may be subject to the passive activity limitations.37 If a PSC does not meet the material participation requirements, its net passive losses and credits must be carried over to a year when it has passive income. In the case of closely held C corporations that do not meet material participation requirements, passive losses and credits are allowed to offset the corporations net active income but not its portfolio income (i.e., interest, dividends, annuities, royalties, and capital gains on the sale of investment property).38
OBJECTIVE
OMPUTING A C O R P O R AT I O N S I N C O M E TA X LIABILITY
Once a corporation determines its taxable income, it then must compute its tax liability for the year. Table C:3-2 outlines the steps for computing a corporations regular (income) tax liability. This section explains the steps involved in arriving at a corporations income tax liability in detail.
Compute a corporations income tax liability
TABLE C:3-2
Computation of the Corporate Regular (Income) Tax Liability

Taxable income Times: Income tax rates Regular tax liability Minus: Foreign tax credit (Sec. 27) Regular tax Minus: General business credit (Sec. 38) Minimum tax credit (Sec. 53) Other allowed credits Plus: Recapture of previously claimed tax credits Income tax liability
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Sec. 465(a). Secs. 469(a)(2)(B) and (C).
38
Sec. 469(e)(2).
REAL-WORLD EXAMPLE
In 2009, the IRS collected $225 billion from corporations, which was 9.8% of the $2.3 trillion collected by the IRS. This percentage is down from 13% in 2008.
GENERAL RULES All C corporations (other than members of controlled groups of corporations and personal service corporations) use the same tax rate schedule to compute their regular tax liability. The following table shows these rates, which also are reproduced on the inside back cover of this textbook.
Taxable Income Over But Not Over The Tax Is Of the Amount Over
0 50,000 75,000 100,000 335,000 10,000,000 15,000,000 18,333,333
50,000 75,000 100,000 335,000 10,000,000 15,000,000 18,333,333
7,500 13,750 22,250 113,900 3,400,000 5,150,000 6,416,667
15% 25% 34% 39% 34% 35% 38% 35%
0 50,000 75,000 100,000 335,000 10,000,000 15,000,000 18,333,333
EXAMPLE C:3-28
Copper Corporation reports taxable income of $100,000. Coppers regular tax liability is computed as follows: Tax on first $50,000: Tax on second $25,000: Tax on remaining $25,000: Regular tax liability 0.15 0.25 0.34 $50,000 25,000 25,000 $7,500 6,250 8,500 $22,250
This tax liability also can be determined from the above tax rate schedule.
If taxable income exceeds $100,000, a 5% surcharge applies to the corporations taxable income exceeding $100,000. The surcharge phases out the lower graduated tax rates that apply to the first $75,000 of taxable income for corporations earning between $100,000 and $335,000 of taxable income. The maximum surcharge is $11,750 [($335,000 $100,000) 0.05]. The above tax rate schedule incorporates the 5% surcharge by imposing a 39% (34% 5%) rate on taxable income from $100,000 to $335,000.
EXAMPLE C:3-29 Delta Corporation reports taxable income of $200,000. Deltas regular tax liability is computed as follows: Tax on first $50,000: Tax on next $25,000: Tax on remaining $125,000: Surcharge (income over $100,000): Regular tax liability Alternatively, from the above tax rate schedule, the tax is $22,250 $100,000)] $61,250. [0.39 0.15 0.25 0.34 0.05 $ 50,000 25,000 125,000 100,000 $ 7,500 6,250 42,500 5,000 $61,250 ($200,000
If taxable income is at least $335,000 but less than $10 million, the corporation pays a flat 34% tax rate on all of its taxable income. A corporation whose income is at least $10 million but less than $15 million pays $3.4 million plus 35% of the income above $10 million.
EXAMPLE C:3-30 Elgin Corporation reports taxable income of $350,000. Elgins regular tax liability is $119,000 (0.34 $350,000). If Elgins taxable income is instead $12 million, its tax liability is $4.1 million [$3,400,000 (0.35 $2,000,000)].
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If a corporations taxable income exceeds $15 million, a 3% surcharge applies to the corporations taxable income exceeding $15 million (but not exceeding $18,333,333). The surcharge phases out the one percentage point lower rate (34% vs. 35%) that applies to the first $10 million of taxable income. The maximum surcharge is $100,000 [($18,333,333 $15,000,000) 0.03]. The above tax rate schedule incorporates the 3%
surcharge by imposing a 38% (35% 3%) rate on taxable income from $15 million to $18,333,333. A corporation whose taxable income exceeds $18,333,333 pays a flat 35% tax rate on all its taxable income.
STOP & THINK Question: Planner Corporation has an opportunity to realize $50,000 of additional
income in either the current year or next year. Planner has some discretion as to the timing of this additional income. Not counting the additional income, Planners current year taxable income is $200,000, and it expects next years taxable income to be $500,000. In what year should Planner recognize the additional $50,000? Solution: Even though Planners current year taxable income is lower than next years expected taxable income, Planner will have a lower marginal tax rate next year. The current years marginal tax rate is 39% because Planners taxable income is in the 5% surtax range (or 39% bubble). Next years taxable income is beyond the 39% bubble and is in the flat 34% range. Thus, Planner can save $2,500 (0.05 $50,000) in taxes by deferring the $50,000 until next year.
P E R S O N A L S E R V I C E C O R P O R AT I O N S Personal service corporations are denied the benefit of the graduated corporate tax rates. Thus, all the income of personal service corporations is taxed at a flat 35% rate. Section 448(d) defines a personal service corporation as a corporation that meets the following two tests: Substantially all its activities involve the performance of services in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, and consulting. Substantially all its stock (by value) is held directly or indirectly by employees performing the services or retired employees who performed the services in the past, their estates, or persons who hold stock in the corporation by reason of the death of an employee or retired employee within the past two years. This rule encourages employee-owners of personal service corporations either to withdraw earnings from the corporation as deductible salary (rather than have the corporation retain them) or make an S election.
GROUPS O F C O R P O R AT I O N S
OBJECTIVE
CO N T R O L L E D
Understand what a controlled group is and the tax consequences of being a controlled group
Special tax rules apply to corporations under common control to prevent them from avoiding taxes that otherwise would be due. The rules apply to corporations that meet the definition of a controlled group. This section explains why special rules apply to controlled groups, how the IRC defines controlled groups, and what special rules apply to controlled groups.
WHY SPECIAL RULES ARE NEEDED Special controlled group rules prevent shareholders from using multiple corporations to avoid having corporate income taxed at a 35% rate. If these rules were not in effect, the owners of a corporation could allocate the corporations income among two or more corporations and take advantage of the lower 15%, 25%, and 34% rates on the first $10 million of corporate income for each corporation. The following example demonstrates how a group of shareholders could obtain a significant tax advantage by dividing a business enterprise among several corporate entities. Each corporation then could take advantage of the graduated corporate tax rates. To prevent a group of shareholders from using multiple corporations to gain such tax advantages, Congress enacted laws that limit the tax benefits of multiple corporations.39
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Secs. 1561 and 1563.
The Corporate Income Tax Corporations 3-25 EXAMPLE C:3-31 Axle Corporation reports taxable income of $450,000. Axles regular tax liability on that income is $153,000 (0.34 $450,000). If Axle could divide its taxable income equally among six corporations ($75,000 apiece), each corporations federal income tax liability would be $13,750 [(0.15 $50,000) (0.25 $25,000)], or an $82,500 total regular tax liability for all the corporations. Thus, Axle could save $70,500 ($153,000 $82,500) in federal income taxes.
The law governing controlled corporations requires special treatment for two or more corporations controlled by the same shareholder or group of shareholders. The most important restrictions on a controlled group of corporations are that the group must share the benefits of the progressive corporate tax rate schedule and pay a 5% surcharge on the groups taxable income exceeding $100,000, up to a maximum surcharge of $11,750, and also pay a 3% surcharge on the groups taxable income exceeding $15 million, up to a maximum surcharge of $100,000.
EXAMPLE C:3-32 White, Blue, Yellow, and Green Corporations belong to a controlled group. Each corporation reports $100,000 of taxable income (a total of $400,000). Only one $50,000 amount is taxed at 15% and only one $25,000 amount is taxed at 25%. Furthermore, the group is subject to the maximum $11,750 surcharge because its total taxable income exceeds $335,000. This surcharge is levied on the group member(s) that received the benefit of the 15 and 25% rates. Therefore, the groups total regular tax liability is $136,000 (0.34 $400,000), as though one corporation earned the entire $400,000. Each corporation would be allocated $34,000 of this tax liability.
W H AT I S A C O N T R O L L E D G R O U P ? A controlled group is comprised of two or more corporations owned directly or indirectly by the same shareholder or group of shareholders. Controlled groups fall into three categories: a parent-subsidiary controlled group, a brother-sister controlled group, and a combined controlled group. Each of these groups is subject to the limitations described above.
ADDITIONAL COMMENT
For purposes of the Sec. 179 expense dollar limitation, a morethan-50% threshold replaces the at-least-80% threshold in defining a parent-subsidiary controlled group.
PARENT-SUBSIDIARY CONTROLLED GROUPS. In a parent-subsidiary controlled group, one corporation (the parent corporation) must directly own at least 80% of the voting power of all classes of voting stock, or 80% of the total value of all classes of stock, of a second corporation (the subsidiary corporation).40 The group can contain more than one subsidiary corporation. If the parent corporation, the subsidiary corporation, or any other members of the controlled group in total own at least 80% of the voting power of all classes of voting stock, or 80% of the total value of all classes of stock, of another corporation, that other corporation also is included in the parent-subsidiary controlled group.
Parent Corporation owns 80% of Axle Corporations single class of stock and 40% of Wheel Corporations single class of stock. Axle also owns 40% of Wheels stock. (See Figure C:3-2.) Parent, Axle, and Wheel are members of the same parent-subsidiary controlled group because Parent directly owns 80% of Axles stock and therefore is its parent corporation, and Wheels stock is 80% owned by Parent (40%) and Axle (40%). If Parent and Axle together owned only 70% of Wheels stock and an unrelated shareholder owned the remaining 30%, Wheel would not be included in the parent-subsidiary group. The controlled group then would consist only of Parent and Axle. Beta Corporation owns 70% of Spectrum Corporations single class of stock and 60% of Red Corporations single class of stock. Blue Corporation owns the remaining stock of Spectrum (30%) and Red (40%). No combination of these corporations forms a parent-subsidiary group because no corporation has direct stock ownership of at least 80% of any other corporations stock.
EXAMPLE C:3-33
EXAMPLE C:3-34
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Sec. 1563(a)(1). Section 1563(d)(1) requires that certain attribution rules apply to determine stock ownership for parent-subsidiary controlled groups. If any person has an option to acquire stock, such stock is considered owned
by the person having the option. Section 1563(c) excludes certain types of stock from the controlled group definition of stock.
Parent Corporation
40% 80%
Axle Corporation
40%
Wheel Corporation
FIGURE C:3-2
PARENT-SUBSIDIARY CONTROLLED GROUP (EXAMPLE C:3-33)
BROTHER-SISTER CONTROLLED GROUPS. The IRC contains two definitions of a brother-sister controlled group. This textbook will refer to them as the 50%-80% definition and the 50%-only definition. Under the 50%-80% definition, a group of two or more corporations is a brother-sister controlled group if five or fewer individuals, trusts, or estates own At least 80% of the voting power of all classes of voting stock (or at least 80% of the total value of the outstanding stock) of each corporation, and More than 50% of the voting power of all classes of stock (or more than 50% of the total value of the outstanding stock) of each corporation, taking into account only the stock ownership that is common with respect to each corporation.41 A common ownership is the percentage of stock a shareholder owns that is common or identical in each of the corporations. For example, if a shareholder owns 30% of New Corporation and 70% of Old Corporation, his or her common ownership is 30%. Thus, under the 50%-80% definition, the five or fewer shareholders not only must have more than 50% common ownership in the corporations, they also must own at least 80% of the stock of each corporation in the brother-sister group. This definition is narrow because the shareholders must meet two tests. The 50%-only definition, on the other hand, is broader than the 50%-80% definition in that the five or fewer shareholders must satisfy only the 50% common ownership test described above. Consequently, in situations where the 50%-only definition applies, more corporations may be pulled into the controlled group than under the 50%-80% definition. Table C:3-3 on page C:3-29 indicates which definition applies to specific situations.
EXAMPLE C:3-35 North and South Corporations have only one class of stock outstanding, owned by the following individuals: Stock Ownership Percentages Shareholder Walt Gail Total North Corp. 30% 70% 100% South Corp. 70% 30% 100% Common Ownership 30% 30% 60%
Five or fewer individuals (Walt and Gail) together own at least 80% (actually 100%) of each corporations stock, and the same individuals own more than 50% (actually 60%) of the corporations stock taking into account only their common ownership in each corporation. Because
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Sec. 1563(a)(2). Section 1563(d)(2) requires that certain attribution rules apply to determine stock ownership for brother-sister controlled groups. If any person has an option to acquire stock, such stock is considered to be owned by the person having the option. A proportionate amount of stock owned by a partnership, estate, or trust is attributed to partners having an interest of 5% or more in the capital or profits of the partnership or benefici-
aries having a 5% or more actuarial interest in the estate or trust. A proportionate amount of stock owned by a corporation is attributed to shareholders owning 5% or more in value of the corporate stock. Family attribution rules also can cause an individual to be considered to own the stock of a spouse, child, grandchild, parent, or grandparent.
The Corporate Income Tax Corporations 3-27 their ownership satisfies both tests, North and South are a brother-sister controlled group under the 50%-80% definition and under the 50%-only definition. (See Figure C:3-3.) EXAMPLE C:3-36 East and West Corporations have only one class of stock outstanding, owned by the following individuals: Stock Ownership Percentages Shareholder Javier Sara Total East Corp. 80% 20% 100% West Corp. 25% 75% 100% Common Ownership 25% 20% 45%
Five or fewer individuals (Javier and Sara) together own at least 80% (actually 100%) of each corporations stock. However, those same individuals own only 45% of the corporations stock taking into account only their common ownership. Because their ownership does not satisfy the more-than-50% test, East and West are not a brother-sister controlled group under either the 50%-80% or the 50%-only definition. Consequently, each corporation is taxed on its own income without regard to the earnings of the other.
An individuals stock ownership can be counted for the 80% test only if that individual owns stock in each and every corporation in the controlled group.42
EXAMPLE C:3-37 Long and Short Corporations each have only a single class of stock outstanding, owned by the following individuals: Stock Ownership Percentages Shareholder Al Beth Carol Total Long Corp. 50% 20% 30% 100% Short Corp. 40% 60% 100% Common Ownership 40% 20% 60%
Carols stock does not count for purposes of Longs 80% stock ownership requirement because she owns no stock in Short. Only Als and Beths stock holdings count, and together they own only 70% of Longs stock. Thus, the 80% test fails. Consequently, Long and Short are not a brother-sister controlled group under the 50%-80% defintion, but they are a brothersister controlled group under the 50%-only definition.
30%
North Corporation
Walt
70 %
% 70
30%
South Corporation
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Gail
FIGURE C:3-3
BROTHER-SISTER CONTROLLED GROUP (EXAMPLE C:3-35)
42
Reg. Sec. 1.1563-1(a)(3).
COMBINED CONTROLLED GROUPS. A combined controlled group is comprised of three or more corporations meeting the following criteria: Each corporation is a member of a parent-subsidiary controlled group or a brothersister controlled group At least one of the corporations is both the parent corporation of a parent-subsidiary controlled group and a member of a brother-sister controlled group.43
EXAMPLE C:3-38
KEY POINT
The combined controlled group definition does just what its name implies: It combines a parentsubsidiary controlled group and a brother-sister controlled group. Thus, instead of trying to apply the controlled group rules to two different groups, the combined group definition eliminates the issue by combining the groups into one controlled group.
Able, Best, and Coast Corporations each have a single class of stock outstanding, owned by the following shareholders: Stock Ownership Percentages Shareholder Art Barbara Able Corp. Able Corp. 50% 50% Coast Corp. 50% 50% Best Corp. 100%
Able and Coast are a brother-sister controlled group under the 50%-80% and 50%-only definitions because Arts and Barbaras ownership satisfy both the 80% and 50% tests. Able and Best are a parent-subsidiary controlled group because Able owns all of Bests stock. Each of the three corporations is a member of either the parent-subsidiary controlled group (Able and Best) or the brother-sister controlled group (Able and Coast), and the parent corporation (Able) of the parent-subsidiary controlled group also is a member of the brother-sister controlled group. Therefore, Able, Best, and Coast Corporations are members of a combined controlled group. (See Figure C:3-4.)
A P P L I C AT I O N O F T H E C O N T R O L L E D G R O U P T E S T Controlled group status generally is tested on December 31. A corporation is included in a controlled group if it is a group member on December 31 and has been a group member on at least one-half of the days in its tax year that precede December 31. A corporation that is not a group member on December 31, nevertheless, is considered a member for the tax year if it has been a group member on at least one-half the days in its tax year that precede December 31. Corporations are excluded from the controlled group if they were members for less than one-half the days in their tax year that precede December 31 or if they retain certain special tax statuses such as being a tax-exempt corporation.
50%
50
Art
Barbara
50 %
50%
Able Corporation 100% Best Corporation
Coast Corporation
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FIGURE C:3-4
COMBINED CONTROLLED GROUP (EXAMPLE C:3-38)
43
Sec. 1563(a)(3).
The Corporate Income Tax Corporations 3-29 TABLE C:3-3
Items that Must be Apportioned if a Controlled Group Exists

Brother-Sister 50%-Only 50%80% x x x x x x x x Parent-Subsidiary 80% 50% x x x x x
Item Low-bracket tax rates AMT exemption Minimum accumulated earnings tax credit Section 179 expense limitation General business tax credit limitation
EXAMPLE C:3-39
Ace and Copper Corporations are members of a parent-subsidiary controlled group of which Ace is the common parent. Both corporations are calendar year taxpayers and have been group members for the entire year. They do not file a consolidated return. Bell Corporation, which has a fiscal year ending on August 31, becomes a group member on December 1 of the current year. Although Bell is a group member on December 31 of the current year, it has been a group member for less than half the days in its tax year that precede December 31only 30 of 121 days starting on September 1. Therefore, Bell is not a member of the Ace-Copper controlled group for its tax year beginning on September 1 of the current year.
TAX STRATEGY TIP

A controlled group of corporations should elect to apportion the tax benefits in a manner that maximizes the tax savings from the tax benefits. See Tax Planning Considerations later in this chapter for details.
The definitions of a parentsubsidiary controlled group and an affiliated group are similar, but not identical. For example, the 80% stock ownership test for controlled group purposes is satisfied if 80% of the voting power or 80% of the FMV of a corporations stock is owned. For purposes of an affiliated group, 80% of both the voting power and the FMV of a corporations stock must be owned.
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S P E C I A L R U L E S A P P LY I N G T O C O N T R O L L E D GROUPS As discussed earlier, if two or more corporations are members of a controlled group, the member corporations are limited to a total of $50,000 taxed at 15%, $25,000 being taxed at 25%, and $9,925,000 million being taxed at 34%. For brother-sister corporations, the broader 50%-only definition applies for limiting the reduced tax rates. In addition, a controlled group must apportion certain other items among its group members, some of which are shown in Table C:3-3. For purposes of apportioning the Sec. 179 expense dollar limitation in a parent-subsidiary situation, the corporations are considered a controlled group if the ownership percentage is more than 50% rather than at least 80%.44 In addition to the above restrictions, Sec. 267(a)(1) allows no deduction for any loss on the sale or exchange of property between two members of the same controlled group. However, in contrast to losses between a corporation and controlling shareholder described earlier in this chapter, a loss realized on a transaction between members of a controlled group is deferred (instead of being disallowed). The original selling member recognizes the deferred loss when the property sold or exchanged in the intragroup transaction is sold outside the controlled group. Section 267(a)(2) allows no deduction for certain accrued expenses or interest owed by one member of a controlled group to another member of the same controlled group when the two corporations use different accounting methods so that the payments would be reported in different tax years. (See page C:3-21 for a detailed discussion of Sec. 267.) The Sec. 1239 rules that convert capital gain into ordinary income on depreciable property sales between related parties also apply to sales or exchanges involving two members of the same controlled group. Sections 267 and 1239, however, provide special definitions of controlled groups that differ somewhat from those described above. These details are beyond the scope of this textbook. C O N S O L I D AT E D TA X R E T U R N S WHO CAN FILE A CONSOLIDATED RETURN. Some groups of related corporations (i.e., affiliated groups) may elect to file a single income tax return called a consolidated tax return. An affiliated group is one or more chains of includible corporations connected through stock ownership with a common parent. In general, includible corporations are those other than foreign corporations, certain insurance companies, tax-exempt organiza-
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Secs. 179(d)(6) and (7).
tions, S corporations, and a few other specially defined corporations. The required ownership criteria are as follows: The common parent must directly own stock with at least 80% of the voting power and 80% of the value of at least one includible corporation. One or more group members must directly own stock with at least 80% of the voting power and 80% of the value of each other corporation included in the affiliated group.45 Many parent-subsidiary controlled groups also qualify as affiliated groups and thus are eligible to file a consolidated return in place of separate tax returns for each corporation. The parent-subsidiary portion of a combined group also can file a consolidated tax return if it also qualifies as an affiliated group. Brother-sister controlled groups, however, are not eligible to file consolidated returns because the requisite parent-subsidiary relationship does not exist. An affiliated group elects to file a consolidated tax return by filing Form 1120, which includes all the income and expenses of each of its members. Each corporate member of the affiliated group must consent to the original election. Thereafter, any new member of the affiliated group must join in the consolidated return.
SELF-STUDY QUESTION
What is probably the most common reason for making a consolidated return election?
ANSWER
Filing consolidated returns allows the group to offset losses of one corporation against the profits of other members of the group.
ADVANTAGES OF FILING A CONSOLIDATED RETURN. A consolidated return, in effect, is one tax return for the entire affiliated group of corporations. The main advantages of filing a consolidated return are Losses of one member of the group can offset profits of another member of the group. Capital losses of one member of the group can offset capital gains of another member of the group. Profits or gains realized on intercompany transactions are deferred until a sale outside the group occurs (i.e., if one member sells property to another member, the gain is postponed until the member sells the property to someone outside the affiliated group). In contrast, if the group members file separate returns, members with NOLs or capital losses must either carry back these losses to earlier years or carry them over to future years rather than offset another members profits or gains. Although the losses of one group member can offset the profits of another group member when the group files a consolidated return, some important limitations apply to the use of a member corporations NOL. These limitations prevent one corporation from purchasing another corporations NOL carryovers to offset its own taxable income or purchasing a profitable corporation to facilitate the use of its own NOL carryovers. (See Chapters C:7 and C:8.) The following example illustrates the advantage of a consolidated return election.
Parent Corporation owns 100% of Subsidiary Corporations stock. Parent reports $110,000 of taxable income, including a $10,000 capital gain. Subsidiary incurs a $100,000 NOL and a $10,000 capital loss. If Parent and Subsidiary file separate returns, Parent has a $26,150 [$22,250 0.39 ($110,000 $100,000)] tax liability. Subsidiary has no tax liability but may be able to use its $100,000 NOL and $10,000 capital loss to offset taxable income in other years. On the other hand, if Parent and Subsidiary file a consolidated return, the groups consolidated taxable income is zero and the group has no tax liability. By filing a consolidated return, the group saves $26,150 in taxes for the year.
EXAMPLE C:3-40

The corporations included in a consolidated tax return may differ from those included in consolidated financial statements. Page 1 of Schedule M-3 reconciles financial statement worldwide consolidated net income to financial statement net income (loss) of corporations included in the consolidated tax return.
DISADVANTAGES OF FILING A CONSOLIDATED RETURN. The main disadvantages of a consolidated return election are The election is binding on all subsequent tax years unless the IRS grants permission to discontinue filing consolidated returns or the affiliated group terminates. Losses on intercompany transactions are deferred until a sale outside the group takes place. One members Sec. 1231 losses offset another members Sec. 1231 gains instead of being reported as an ordinary loss. Losses of an unprofitable member of the group may reduce the deduction or credit limitations of the group below what would be available had the members filed separate tax returns.
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Sec. 1504(a).

ADDITIONAL COMMENT
Under Sec. 267 discussed earlier, intercompany losses may be deferred even if the corporations file separate tax returns.
The group may incur additional administrative costs in maintaining the records needed to file a consolidated return. Determining whether to make a consolidated tax return election is a complex decision because of the various advantages and disadvantages and because the election is so difficult to revoke once made. Chapter C:8 provides detailed coverage of the consolidated return rules.
PLANNING C O N S I D E R AT I O N S
OBJECTIVE
TA X
Understand how compensation planning can reduce taxes for corporations and their shareholders
C O M P E N S AT I O N P L A N N I N G F O R SHAREHOLDER-EMPLOYEES Compensation paid to a shareholder-employee in the form of salary has the advantage of single taxation because, while taxable to the employee, salary is deductible by the corporation. Dividend payments, on the other hand, are taxed twice. The corporation is taxed on its income when earned, and the shareholder is taxed on profits distributed as dividends. Double taxation occurs because the corporation may not deduct dividend payments. The reduced tax rate on dividends available through 2012, however, makes the difference between salary and dividends much less substantial than when dividends are taxed at ordinary rates.
Delta Corporation earns $500,000 and wishes to distribute $100,000 or as much of the $100,000 as possible to Mary, its sole shareholder and CEO. Marys ordinary tax rate is 35%, and the corporations marginal tax rate is 34%. Ignoring payroll taxes, the following table compares salary and dividend payments to Mary with respect to the $100,000 of partial earnings: Salary 1. Corporate earnings (partial) 2. Minus: Salary deduction 3. Corporate taxable income (partial) 4. Times: Corporate tax rate 5. Corporate income tax (on partial income) 6. Dividend to Mary (Line 1 7. Times: Marys tax rate 8. Marys tax 9. Total tax (Line 5 Line 8) Line 1) 10. Overall tax rate (Line 9 Line 5) $100,000 (100,000) $ $ -00.34 -0Dividend at Ordinary Tax Rate $100,000 -0$100,000 0.34 $ 34,000 $ 66,000 0.35 $ 23,100 $ 57,100 57.1% Dividend at Reduced Tax Rate $100,000 -0$100,000 0.34 $ 34,000 $ 66,000 0.15 $ 9,900 $ 43,900 43.9%
EXAMPLE C:3-41
$100,000 0.35 $ 35,000 $ 35,000 35%
Thus, the preferential dividend rate reduces the overall tax rate on the corporate earnings from 57.1% to 43.9% and lessens the difference between salary and dividends from 22.1% (57.1% 35%) to 8.9% (43.9% 35%). This example demonstrates Congresss intent of reducing the double taxation of corporate earnings when the corporation pays dividends.
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To avoid double taxation, some owners of closely held corporations prefer to be taxed under the rules of Subchapter S (see Chapter C:11). Other owners of closely held corporations retain C corporation status to use the 15% and 25% marginal corporate tax rates and to benefit from nontaxable fringe benefits such as health and accident insurance. These fringe benefits are nontaxable to the employee and deductible by the corporation. For both tax and nontax reasons, closely held corporations must determine the appropriate level of earnings to be withdrawn from the business in the form of salary and fringe benefits and the amount of earnings to be retained in the business. ADVANTAGE OF SALARY PAYMENTS. If a corporation distributes all its profits as deductible salary and fringe benefit payments, it will eliminate double taxation. However, the following considerations limit such tax planning opportunities:

ADDITIONAL COMMENT
Reasonableness of a salary payment is a question of fact to be determined in each case. No formula can be used to determine a reasonable amount.
Regulation Sec. 1.162-7(a) requires salary or fringe benefit payments to be reasonable in amount and to be paid for services rendered by the employee. If the IRS deems compensation to be unreasonable, it may disallow the portion of the salary it deems unreasonable while still requiring the employee to include all compensation in gross income (see Chapter C:4). This disallowance will result in double taxation. The reasonable compensation restriction primarily affects closely held corporations. A corporation may not deduct compensation paid to an executive of a publicly traded corporation that exceeds $1 million. However, this limitation does not apply to compensation paid to an executive other than the corporations top five officers, or to performance-based compensation.46 A corporation is a taxpaying entity independent of its owners. The first $75,000 of a corporations earnings is taxed at 15% and 25% corporate tax rates. These rates are lower than the marginal tax rate that may apply to an individual taxpayer and provides an incentive to retain some earnings in the corporation instead of paying them out as salaries. A combined employeeemployer social security tax rate of 15.3% applied in 2010 Employers and employees were each liable for 6.2% of old age security and disability insurance tax, or a total of 12.4% of the first $106,800 of wages in 2010. Employers and employees also are each liable for a 1.45% Medicare hospital insurance tax, for a total of 2.9% of all wages. In addition to these taxes, state and federal unemployment taxes may be imposed on a portion of wages paid. ADVANTAGE OF FRINGE BENEFITS. Fringe benefits provide two types of tax advantages: a tax deferral or an exclusion. Qualified pension, profit-sharing, and stock bonus plans provide a tax deferral; that is, the corporations contribution to such a plan is not taxable to the employees when the corporation makes the contribution. Instead, employees are taxed on the benefits when they receive them. Other common fringe benefits, such as group term life insurance, accident and health insurance, and disability insurance, are exempt from tax altogether; that is, the employee never is taxed on the value of these fringe benefits. Because the employee excludes the value of fringe benefits from gross income, the marginal individual tax rate applicable to these benefits is zero. Thus, conversion of salary into a fringe benefit provides tax savings for the shareholder-employee equal to the amount of the converted salary times the employees marginal tax rate, assuming the shareholder-employee could not purchase the same fringe benefit and deduct its cost on his or her individual tax return.
NEW LAW
In 2011 only, the employee portion is 4.2%, making the total 10.4% of the first $106,800 of wages in 2011. The overall total for 2011 is 13.3% (10.4% + 2.9%).
TAX STRATEGY TIP

A fringe benefit probably is the most cost effective form of compensation because the amount of the benefit is deductible by the employer and never taxed to the employee. Thus, where possible, fringe benefits are an excellent compensation planning tool. For closely held corporations, however, the tax savings to shareholder-employees are reduced because the fringe benefit must be offered to all employees without discrimination.
S P E C I A L E L E C T I O N T O A L L O C AT E R E D U C E D TA X R AT E B E N E F I T S A controlled group may elect to apportion the tax benefits of the 15%, 25%, and 34% tax rates to the member corporations in any manner it chooses. If the corporations elect no special apportionment plan, the $50,000, $25,000, and $9,925,000 amounts allocated to the three reduced tax rate brackets are divided equally among all the corporations in the group.47 If a controlled group has one or more group members that report little or no taxable income, the group should elect special apportionment of the reduced tax benefits to obtain the full tax savings resulting from the reduced rates. The following steps outline a set of procedures for apportioning tax rates for taxable income levels at or below $10 million.48
1. If aggregate positive taxable income is $100,000 or less, apportion the 15%, 25%, and 34% rates to members that have positive taxable income so as to maximize their benefit. a. To avoid wasting low tax rates on loss members, elect special apportionment of tax benefits.
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46 47
Sec. 162(m). Sec. 1561(a).
48 For the sake of simplicity, we do not extend the procedures to taxable income exceeding $10 million but similar procedures apply.
b. Summing the members taxes results in the same total tax as would occur by applying the corporate tax rate schedule to the groups aggregate positive taxable income. 2. If aggregate positive taxable income is between $100,000 and $335,000, apportion the 15%, 25%, and 34% brackets as in Step 1 above. Follow the next steps to apportion the 5% surtax. a. Calculate the surtax as 5% times (aggregate positive taxable income $100,000). b. If the calculated surtax is $9,500 or less, apportion the calculated surtax in proportion to the way the corporations apportioned the 15% bracket. c. If the surtax is greater than $9,500 ($11,750 maximum), apportion the first $9,500 as in Step 2b, and apportion the excess in proportion to the way the corporations apportioned the 25% bracket in Step 1 above. d. Summing the members taxes results in the same total tax as would occur by applying the corporate tax rate schedule to the groups aggregate positive taxable income. 3. If aggregate positive taxable income is from $335,000 to $10,000,000, the 15% and 25% tax brackets are fully phased out, so each members tax equals a flat 34% of its taxable income, and the groups total tax equals 34% of aggregate positive taxable income.
EXAMPLE C:3-42
North and South Corporations are members of a controlled group. The corporations file separate tax returns for the current year and report the following results: Corporation North South Taxable Income (NOL) $(25,000) 100,000
If they elect no special apportionment plan, North and South are limited to $25,000 each taxed at a 15% rate and to $12,500 each taxed at a 25% rate. The tax liability for each corporation is determined as follows: Corporation North South 15% tax bracket: 0.15 25% tax bracket: 0.25 34% tax bracket: 0.34 $25,000 $12,500 $62,500 Calculation $ Tax 0 $ 3,750 3,125 21,250 $28,125 $28,125
Subtotal for South Corporation Total for North-South controlled group
If the corporations elect a special apportionment plan, the group may apportion the full $50,000 and $25,000 amounts for each of the reduced tax rate brackets to South. The tax liability for each corporation is determined as follows: Corporation North South 15% tax bracket: 0.15 25% tax bracket: 0.25 34% tax bracket: 0.34 $50,000 $25,000 $25,000 Calculation $ Tax 0 $ 7,500 6,250 8,500 $22,250 $22,250
Subtotal for South Corporation Total for North-South controlled group
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By shifting the benefit of low tax brackets away from a corporation that cannot use it (North) to a corporation that can (South), the special apportionment election reduces the total tax liability for the North-South controlled group by $5,875 ($28,125 $22,250).
If a controlled groups total taxable income exceeds $100,000 ($15 million), a 5% (3%) surcharge recaptures the benefits of the reduced tax rates. The component member (or members) that took advantage of the lower tax rates pays this additional tax.
EXAMPLE C:3-43 Alpha, Beta, and Gamma Corporations are members of a controlled group and report the following results: Corporation Alpha Beta Gamma Taxable Income (Loss) $ 80,000 (25,000) 230,000
The group, which has aggregate taxable income of $310,000 ($80,00 $230,000), elects special apportionment. They apportion the 15% tax bracket to Alpha with the balance of Alphas income taxed at 34% (before the surtax apportionment), and they apportion the 25% tax bracket to Gamma with the balance of Gammas income taxed at 34% (before the surtax apportionment). The surtax in this case is $10,500 (0.05 ($310,000 $100,000)). Using the procedures outlined above, the members apportion $9,500 of the surtax to Alpha because that corporation received the entire 15% tax bracket, and they apportion the remaining $1,000 surtax to Gamma because that corporation received the entire 25% tax bracket. Accordingly, the tax liability for each corporation is as follows: Alpha: Tax on $50,000 at 15% Tax on $30,000 at 34% Surtax Total for Alpha Beta Gamma: Tax on $25,000 at 25% Tax on $205,000 at 34% Surtax Total for Alpha Total for the group $ 7,500 10,200 9,500 $27,200 0 $ 6,250 69,700 1,000 76,950 $104,150
The total tax for the group is the same as if they applied the corporate tax rate schedule to the $310,000 aggregate positive taxable income as follows: $22,250 ($210,000 0.39) $104,150. EXAMPLE C:3-44 Hill, Jet, and King Corporations are members of a controlled group and report the following results: Corporation Hill Jet King Taxable Income $300,000 (50,000) 100,000
The groups aggregate positive taxable income is $400,000 ($300,000 $100,000), which exceeds $335,000. Therefore, with special apportionment, Hills and Kings tax equals 34% of each corporations taxable income as follows: Hill ($300,000 0.34) Jet King ($100,000 0.34)
TAX STRATEGY TIP
A corporation may want to elect to forgo the NOL carryback when tax credit carryovers are being used in the earlier years. If the NOLs are carried back, the tax credits may expire. Thus, before deciding to carry back NOLs, the prior tax returns should be carefully examined to ensure that expiring tax credits do not exist.
$102,000 0 34,000 0.34) $136,000

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Total for the group ($400,000
U S I N G N O L C A R RY O V E R S A N D C A R RY B A C K S When a corporation incurs an NOL for the year, it has two choices:
Carry the NOL back to the second and first preceding years in that order (assuming no extended carryback period), and then forward to the succeeding 20 years in chronological order until the NOL is exhausted. Forgo any carryback and just carry the NOL forward to the 20 succeeding years.
A corporation might elect to forgo an NOL carryback if it would offset income at a low tax rate, resulting in a small tax refund compared to a greater anticipated benefit if the NOL instead were carried over to a high tax rate year.
EXAMPLE C:3-45 Boyd Corporation, a calendar year taxpayer, incurs a $30,000 NOL in 2011. Boyds 2009 taxable income was $50,000. If Boyd carries the NOL back to 2009, Boyds tax refund is computed as follows: Original tax on $50,000 (using 2009 rates) Minus: Recomputed tax on $20,000 [($50,000 $30,000) 0.15] Tax refund $7,500 (3,000) $4,500
ETHICAL POINT
When tax practitioners take on a new client, they should review the clients prior year tax returns and tax elections for accuracy and completeness. Tax matters arising in the current year, such as an NOL, can affect prior year tax returns prepared by another tax practitioner. Positions taken or errors discovered in a prior year return may have ethical consequences for a practitioner who takes on a new client.
If Boyd anticipates taxable income (after reduction for any NOL carryovers) of $75,000 or more in 2012, carrying over the NOL will result in the entire loss offsetting taxable income that otherwise would be taxed at a 34% or higher marginal tax rate. The tax savings is computed as follows: Tax on $105,000 of expected taxable income Minus: Tax on $75,000 ($105,000 $30,000) Tax savings in 2012 $24,200 (13,750) $10,450
Thus, if Boyd expects taxable income to be $105,000 in 2012, it might elect to forgo the NOL carryback and obtain the additional $5,950 ($10,450 $4,500) tax benefit. Of course, by carrying the NOL over to 2012, Boyd loses the value of having the funds immediately available. However, Boyd may use the NOL to reduce its estimated tax payments for 2012. If the corporation expects the NOL carryover benefit to occur at an appreciably distant point in the future, the corporation would have to determine the benefits present value to make it comparable to a refund from an NOL carryback. This example ignores the effect the NOL carryover has on the U.S. production activities deduction in the carryover year.
OMPLIANCE AND P R O C E D U R A L C O N S I D E R AT I O N S
E S T I M AT E D TA X E S Every corporation that expects to owe more than $500 in tax for the current year must pay four installments of estimated tax, each equal to 25% of its required annual payment.49 For corporations that are not large corporations (defined below), the required annual payment is the lesser of 100% of the tax shown on the current year return or 100% of the tax shown on the preceding year return. A corporation may not base its required estimated tax amount on the tax shown on the preceding year return if the preceding year tax return showed a zero tax liability.50 The estimated tax amount is the sum of the corporations income tax and alternative minimum tax liabilities that exceeds its tax credits. The amount of estimated tax due may be computed on Schedule 1120-W (Estimated Tax for Corporations).
ESTIMATED TAX PAYMENT DATES. A calendar year corporation must deposit estimated tax payments in a Federal Reserve bank or authorized commercial bank on or before April 15, June 15, September 15, and December 15.51 This schedule differs from that of an individual taxpayer. The final estimated tax installment for a calendar year corporation is due in December of the tax year rather than in January of the following tax year, as is the case for individual taxpayers. For a fiscal year corporation, the due dates are the fifteenth day of the fourth, sixth, ninth, and twelfth months of the tax year.
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49 50
Sec. 6655. Rev. Rul. 92-54, 1992-2 C.B. 320. 51 Sec. 6655(c)(2). Fiscal year corporations must deposit their taxes on or
before the fifteenth day of the fourth, sixth, ninth, and twelfth month of their tax year. If the fifteenth falls on a weekend or holiday, the payment is due on the next business day.
3-36 Corporations Chapter 3 EXAMPLE C:3-46 Garden Corporation, a calendar year taxpayer, expects to report the following results for the current year: Regular tax Alternative minimum tax $119,000 25,000
The easiest method of determining a corporations estimated tax payments is to pay 100% of last years tax liability. Unfortunately, for large corporations, other than for its first quarterly payment, last years tax liability is not an acceptable method of determining the required estimated tax payments. Also, last years tax liability cannot be used if no tax liability existed in the prior year or if the corporation filed a shortyear return for the prior year.
Gardens current year estimated tax liability is $144,000 ($119,000 regular tax liability $25,000 AMT liability). Gardens tax liability last year was $120,000. Assuming Garden is not a large corporation, its required annual payment for the current year is $120,000, the lesser of its prior year liability ($120,000) or its current year tax return liability ($144,000). Garden will not incur a penalty if it deposits four equal installments of $30,000 ($120,000 4) on or before April 15, June 15, September 15, and December 15 of the current year.
Different estimated tax payment rules apply to large corporations. A large corporations required annual payment is 100% of the tax shown on the current year return. A large corporations estimated tax payments cannot be based on the prior years tax liability except the first installment. If a large corporation bases its first estimated tax installment on the prior years liability, any shortfall between the required payment based on the current years tax liability and the actual payment must be made up with the second installment.52 A large corporation is one whose taxable income was $1 million or more in any of its three immediately preceding tax years. Controlled groups of corporations must allocate the $1 million amount among its group members.
Assume the same facts as in Example C:3-46 except Garden is a large corporation (i.e., it had more than $1 million of taxable income in one of its prior three years). Garden can base its first estimated tax payment on either 25% of its current year tax liability or 25% of last years tax liability. Garden should elect to use its prior year tax liability as the basis for its first installment because it can reduce the needed payment from $36,000 (0.25 $144,000) to $30,000 (0.25 $120,000). However, it must recapture the $6,000 ($36,000 $30,000) shortfall when it pays its second installment. Therefore, the total second installment is $42,000 ($36,000 second installment $6,000 recapture from first installment). The third and fourth installments are $36,000 each.
EXAMPLE C:3-47
KEY POINT
The amount of penalty depends on three factors: the applicable underpayment rate, the amount of the underpayment, and the amount of time that lapses until the corporation makes the payment.
PENALITES FOR UNDERPAYMENT OF ESTIMATED TAX. The IRS will assess a nondeductible penalty if a corporation does not deposit its required estimated tax installment on or before the due date for that installment. The penalty is the underpayment rate found in Sec. 6621 times the amount by which the installment due by a payment date exceeds the payment actually made.53 The penalty accrues from the payment due date for the installment until the earlier of the actual date of the payment or the due date for the tax return (excluding extensions).
Globe Corporation is a calendar year taxpayer that reported a $100,000 tax liability for 2010. Globes tax liability for 2009 was $125,000. It should have made estimated tax payments of $25,000 ($100,000 4) on or before April 15, June 15, September 15, and December 15, 2010. No penalty is assessed if Globe deposited the requisite amounts on or before each of the those dates. However, if Globe deposited only $16,000 ($9,000 less than the required $25,000) on April 15, 2010, and did not deposit the remaining $9,000 before the due date for the 2010 return, the corporation must pay a penalty on the $9,000 underpayment for the period of time from April 15, 2010, through March 15, 2011. If Globe deposits $34,000 on the second installment date (June 15, 2010), so that it has paid a total of $50,000 by the second installment due date, the penalty runs only from April 15, 2010, through June 15, 2010. Now assume that Globe made the following estimated tax payments in 2010:
EXAMPLE C:3-48
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52 Sec. 6655(d)(2)(B). A revision to the required estimated tax payment amount also may be needed if the corporation is basing its quarterly payments on the current years tax liability. Installments paid after the estimate of the current years liability has been revised must take into account any shortage or excess in previous installment payments resulting from the change in the original estimate.
53 Sec. 6621. This interest rate is the short-term federal rate as determined by the Secretary of the Treasury plus three percentage points. It is subject to change every three months. The interest rate for large corporations is the short-term federal rate plus five percentage points. This higher interest rate begins 30 days after the issuance of either a 30-day or 90-day deficiency notice.
The Corporate Income Tax Corporations 3-37 Date April 15 June 15 September 15 December 15 Amount $16,000 16,000 21,000 35,000
Form 2220 in Appendix B calculates the underpayments and resultant penalty given this pattern of payments.
SPECIAL COMPUTATION METHODS. In lieu of the current year and prior year methods, corporations can use either of two special methods for calculating estimated tax installments: The annualized income method The adjusted seasonal income method The Annualized Income Method. This method is useful if a corporations income is likely to increase a great deal toward the end of the year. It allows a corporation to base its first and second quarterly estimated tax payments on its annualized taxable income for the first three months of the year. The corporation then bases its third payment on its annualized taxable income for the first six months of the year and its fourth payment on annualized taxable income for the first nine months of the year. (Two other options for the number of months used for each installment also are available.)
EXAMPLE C:3-49 Erratic Corporation, a calendar year taxpayer, reports taxable income of: $10,000 in each of January, February, and March; $20,000 in each of April, May, and June; and $50,000 in each of the last six months of the current year. Erratics annualized taxable income and annualized tax are calculated as follows: Cumulative Taxable Income $ 30,000 90,000 240,000 Annualization Factor 12/3 12/6 12/9 Annualized Taxable Income $120,000 180,000 320,000 Tax on Annualized Taxable Income $ 30,050 53,450 108,050
TAX STRATEGY TIP

Both the annualized income exception and the adjusted seasonal income exception are complicated computations. However, due to the large amounts of money involved in making corporate estimated tax payments along with the possible underpayment penalties, the time and effort spent in determining the least amount necessary for a required estimated tax payment are often worthwhile.
Through Third month Sixth month Ninth month
Assuming Erratic uses the annualized method for all four estimated tax payments, its installments will be as follows: Installment Number One Two Three Four
a$30,050 b($30,050
Annualized Tax $ 30,050 30,050 53,450 108,050
Applicable Percentage 25% 50 75 100
Installment Amount $ 7,513a 7,512b 25,063c 67,962d
Cumulative Installment $ 7,513 15,025 40,088 108,050
0.25 0.50) $7,513 c($53,450 0.75) $15,025 d($108,050 1.00) $40,088
A corporation may use the annualized income method for an installment payment only if it is less than the regular required installment. It must recapture any reduction in an earlier required installment resulting from use of the annualized income method by increasing the amount of the next installment that does not qualify for the annualized income method. For small corporations, the sure way to avoid a penalty for the underpayment of estimated tax is to base the current years estimated tax payments on 100% of last years tax. This approach is not possible, however, for large corporations or for corporations that owed no tax in the prior year or that filed a short period tax return for the prior year. This approach also is not advisable if the corporation had a high tax liability in the prior year and expects a low tax liability in the current year.
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Adjusted Seasonal Income Method. A corporation may base its installments on its adjusted seasonal income. This method permits corporations that earn seasonal income to annualize their income by assuming income earned in the current year is earned in the same pattern as in preceding years. As in the case of the annualized income exception, a corporation can use the seasonal income exception only if the resulting installment payment is less than the regular required installment. Once the exception no longer applies, any savings resulting from its use for prior installments must be recaptured. REPORTING THE UNDERPAYMENT. A corporation reports its underpayment of estimated taxes and the amount of any penalty on Form 2220 (Underpayment of Estimated Tax by Corporations). A completed Form 2220 using the facts from Example C:3-47 appears in Appendix B. PAYING THE REMAINING TAX LIABILITY. A corporation must pay its remaining tax liability for the year when it files its corporate tax return. An extension of time to file the tax return, however, does not extend the time to pay the tax liability. If any tax remains unpaid after the original due date for the tax return, the corporation must pay interest at the underpayment rate prescribed by Sec. 6621 from the due date until the corporation pays the tax. In addition to interest, the IRS assesses a penalty if the corporation does not pay the tax on time and cannot show reasonable cause for the failure to pay. The IRS presumes that reasonable cause exists if the corporation requests an extension of time to file its tax return and the amount of tax shown on the request for extension (Form 7004) or the amount of tax paid by the original due date of the return is at least 90% of the corporations tax shown on its Form 1120.54 A discussion of the failure-to-pay penalty and the interest calculation can be found in Chapter C:15.
STOP & THINK Question: Why does the tax law permit a corporation to use special methods such as the
annualized income method to calculate its required estimated tax installments? Solution: A large corporation whose income varies widely may not be able to estimate its taxable income for the year until late in the year, and it is not allowed to base its estimates on last years income. If, for example, a calendar year corporation earns income of $100,000 per month during the first six months of its year, it might estimate its first two installments on the assumption that it will earn a total taxable income of $1.2 million for the year. But if its income unexpectedly increases to $500,000 per month in the seventh month, it would need an annualized method to avoid an underpayment penalty for the first two installments. Were it not for the ability to use the annualized method, the corporation would have no way to avoid an underpayment penalty even though it could not predict its taxable income for the year when it made the first two installment payments.
OBJECTIVE
Determine the requirements for paying corporate income taxes and filing a corporate tax return
REQUIREMENTS FOR FILING A N D PAY I N G TA X E S A corporation must file a tax return, Form 1120 (U.S. Corporation Income Tax Return), even if it has no taxable income for the year.55 If the corporation did not exist for its entire annual accounting period (either calendar year or fiscal year), it must file a short period return for the part of the year it did exist. For tax purposes, a corporations existence ends when it ceases business and dissolves, retaining no assets, even if state law treats the corporation as continuing for purposes of winding up its affairs.56 A completed Form 1120 corporate income tax return appears in Appendix B. A spreadsheet that converts book income into taxable income for the Johns and Lawrence business enterprise (introduced in Chapter C:2) is presented with the C corporation tax return.
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Reg. Sec. 301.6651-1(c)(4). Sec. 6012(a)(2).
56
Reg. Sec. 1.6012-2(a)(2).
WHEN THE RETURN MUST BE FILED Corporations must file their tax returns by the fifteenth day of the third month following the close of their tax year.57 A corporation can obtain an automatic six-month extension to file its tax return by filing Form 7004 (Application for Automatic Extension of Time to File Certain Business Tax, Information, and Other Returns) by the original due date for the return. Corporations that fail to file a timely tax return are subject to the failure-to-file penalty. Chapter C:15 discusses this penalty in some detail.
EXAMPLE C:3-50
ADDITIONAL COMMENT
The IRS will not assess a late payment penalty if the corporation extends its due date and pays 90% of its total tax liability by the unextended due date and pays the balance by the extended due date.
Palmer Corporations fiscal tax year ends on September 30. Its corporate tax return for the year ending September 30, 2011, is due on or before December 15, 2011. If Palmer files Form 7004 by December 15, 2011, it can obtain an automatic extension of time to file until June 15, 2012. Assuming Palmer expects its 2011 tax liability to be $72,000 and it has paid $68,000 in estimated tax during the year, it must pay the remaining $4,000 by December 15, 2011. A completed Form 7004 appears in Appendix B.
Additional extensions beyond the automatic six-month period are not available. The IRS can rescind the extension period by mailing a ten-day notice to the corporation before the end of the six-month period.58

Schedule L requires a financial accounting balance sheet rather than a tax balance sheet. However, for many small corporations, the tax balance sheet is the same as the financial accounting balance sheet.
TA X R E T U R N S C H E D U L E S SCHEDULE L (OF FORM 1120): THE BALANCE SHEET. Schedule L of Form 1120 requires a balance sheet showing the financial accounting results at the beginning and end of the tax year.
RECONCILIATION SCHEDULES. The IRS also requires the reconciliation of the corporations financial accounting income (also known as book income) and its taxable income (before special deductions). Book income is calculated according to generally accepted accounting principles (GAAP) including rules promulgated by the Financial Accounting Standards Board (FASB). On the other hand, taxable income must be calculated using tax rules. Therefore, book income and taxable income usually differ. Some small corporations that do not require audited statements keep their books on a tax basis. For example, they may calculate depreciation for book purposes the same way they do for tax purposes. Income tax expense for book purposes may simply reflect the federal income tax liability. Most corporations, however, must use GAAP to calculate net income per books. For such corporations, taxable income and book income may differ significantly. The reconciliation of book income and taxable income provides the IRS with information that helps it audit a corporations tax return. For many corporations, the reconciliation must be provided on Schedule M-1 of Form 1120. Corporations with total assets of $10 million or more on the last day of the tax year, however, must complete Schedule M-3 instead of Schedule M-1. This schedule provides the IRS with much more detailed information on differences between book income and taxable income than does Schedule M-1. This additional transparency of corporate transactions will increase the IRSs ability to audit corporate tax returns. Form 1120 also requires an analysis of unappropriated retained earnings on Schedule M-2. BOOK-TAX DIFFERENCES. A corporations book income usually differs from its taxable income for a large number of transactions. Some of these differences are permanent. Permanent differences arise because: Some book income is never taxed. Examples include: 1. Tax-exempt interest received on state and municipal obligations 2. Proceeds of life insurance carried by the corporation on the lives of key officers or employees Some book expenses are never deductible for tax purposes. Examples include: 1. Expenses incurred in earning tax-exempt interest

The Internal Revenue Code and related authorities determine the treatment of items in the tax return while Accounting Standards Codification (ASC) 740 (Income Taxes) dictates the treatment of tax items in the financial statements.
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Sec. 6072(b).
58
Reg. Sec. 1.6081-3.

SELF-STUDY QUESTION
Why might the IRS be interested in reviewing a corporations Schedule M-1 or M-3?
ANSWER
Schedule M-1 or M-3 adjustments reconcile book income to taxable income. Thus, these schedules can prove illuminating to an IRS agent who is auditing a corporate return. Because Schedule M-1 or M-3 highlights each departure from the financial accounting rules, the schedules sometimes help the IRS identify tax issues it may want to examine further.
2. Premiums paid for life insurance carried by the corporation on the lives of key officers or employees 3. Fines and expenses resulting from a violation of law 4. Disallowed travel and entertainment costs 5. Political contributions 6. Federal income taxes per books, which is based on GAAP (ASC 740) Some tax deductions are never taken for book purposes. Examples include: 1. The dividends-received deduction 2. The U.S. production activities deduction 3. Percentage depletion of natural resources in excess of their cost Some of the differences are temporary. Temporary differences arise because: Some revenues or gains are recognized for book purposes in the current year but not reported for tax purposes until later years. Examples include: 1. Installment sales reported in full for book purposes in the year of sale but reported over a period of years using the installment method for tax purposes 2. Gains on involuntary conversions recognized currently for book purposes but deferred for tax purposes Some revenues or gains are taxable before they are reported for book purposes. These items are included in taxable income when received but are included in book income as they accrue. Examples include: 1. Prepaid rent or interest income 2. Advance subscription revenue Some expenses or losses are deductible for tax purposes after they are recognized for book purposes. Examples include: 1. Excess of capital losses over capital gains, which are expensed for book purposes but carry back or over for tax purposes 2. Book depreciation in excess of tax depreciation 3. Charitable contributions exceeding the 10% of taxable income limitation, which are currently expensed for book purposes but carry over for tax purposes 4. Bad debt accruals using the allowance method for book purposes and the direct write-off method for tax purposes 5. Organizational and start-up expenditures, which are expensed currently for book purposes but partially deducted and amortized for tax purposes 6. Product warranty liabilities expensed for book purposes when estimated but deducted for tax purposes when the liability becomes fixed 7. Net operating losses (NOLs) that, for tax purposes, carry back two years (or extended period if applicable) and carry over 20 years Some expenses or losses are deductible for tax purposes before they are recognized for book purposes. Examples include: 1. Tax depreciation in excess of book depreciation 2. Prepaid expenses deducted on the tax return in the period paid but accrued over a period of years for book purposes For book purposes, temporary differences listed under the first and fourth bullets create deferred tax liabilities while those listed under the second and third bullets create deferred tax assets. The Financial Statement Implications section later in this chapter discusses the financial accounting treatment of book-tax differences. SCHEDULE M-1. The Schedule M-1 reconciliation of book to taxable income begins with net income per books and ends with taxable income before special deductions, which corresponds with Line 28 of Form 1120. Thus, some book-tax differences enumerated above do not appear in the reconciliation, for example, the dividends-received deduction and the net operating loss deduction. The left side of Schedule M-1 contains items the corporation adds back to book income. These items include the following categories: Federal income tax expense (per books) Excess of capital losses over capital gains
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Income subject to tax but not recorded on the books in the current year Expenses recorded on the books but not deductible for tax purposes in the current year The right side of the schedule contains items the corporation deducts from book income. These items include the following categories: Income recorded on the books in the current year that is not taxable in the current year Deductions or losses claimed in the tax return that do not reduce book income in the current year These categorizations, however, do not distinguish between permanent and temporary differences as does Schedule M-3 discussed below. The following example illustrates a Schedule M-1 reconciliation.
EXAMPLE C:3-51 Valley Corporation reports the following items for book and tax purposes in its first year of operations (2010): Book Gross receipts MInus: Cost of goods sold Gross profit from operations Plus: Dividends from less than 20%-owned corporations Tax-exempt income Prepaid rental income Minus: Operating expenses Depreciation Bad debt expense Business interest expense Insurance premiums on life for key employee (Valley is the beneficiary) Net capital loss disallowed for tax purposes U.S. production activities deduction (rounded) Net income before federal income taxes Taxable income before special deductions Minus: Federal income tax expense per books Dividends-received deduction Net income per books / Taxable income Federal tax liability ($365,000 0.34) 31.06% $1,500,000 (550,000) $ 950,000 10,000 3,000 0 (300,000) (60,000) (25,000) (75,000) Tax $1,500,000 (550,000) $950,000 10,000 0 8,000 (300,000) (170,000) (16,000) (75,000) Difference
$ (3,000) 8,000 (110,000) 9,000
(2,800) (12,000) 0 $ 488,200 (151,640) 0 $ 336,560
0 0 (35,000) $372,000 0 (7,000) $365,000 $124,100
2,800 12,000 (35,000)
155,604 (7,000)
Effective tax rate ($151,640/$488,200)
Valleys Schedule M-1 reconciliation appears in Figure C:3-5.59

BOOK-TO-TAX COMPARISON
Schedules M-1 and M-3 adjustments highlight the fact that financial accounting and tax accounting differ in many ways. A review of Schedule M-1 or M-3 is an excellent way to compare the financial accounting and tax accounting differences in a corporation.
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SCHEDULE M-3. Schedule M-3 requires extensive detail in its reconciliation. Moreover, the schedule has the corporation distinguish between its permanent and temporary differences. The schedule contains three parts. Part I adjusts worldwide income per books to worldwide book income for only includible corporations. As described in Chapter C:8, some corporations may be included in the financial statement consolidation that might be excluded from the tax consolidated tax return. This resulting figure is then reconciled to taxable income before special deductions (again Line 28 of Form 1120). Part II enumerates the corporations income and loss items, and Part III enumerates the expense and deduction items. The total items from Part III carry over to Part II for the final reconciliation. Both Parts II and III contain the following four columns: (a) book items, (b) temporary differences, (c) permanent differences, and (d) tax items.
59 A worksheet for converting book income to taxable income for a sample Form 1120 return is provided in Appendix B with that return.
1 2 3 4
Net income (loss) per books . . . . . Federal income tax per books . . . . Excess of capital losses over capital gains Income subject to tax not recorded on books this year (itemize):
332,596 155,604 12,000
Income recorded on books this year not included on this return (itemize): a Tax-exempt interest $ 3,000 b Other (itemize):
3,000
5 Expenses recorded on books this year not deducted on this return (itemize): $ a Depreciation . . . . b Charitable contributions $ c Travel and entertainment $ d Other (itemize): Bad debt expense 9,000 Add lines 1 through 5 .
Prepaid rent
8,000
Deductions on this return not charged against book income this year (itemize): a Depreciation . . $ 110,000 b Charitable contributions $ c Other (itemize):
U.S. prod. act. ded. 35,000 11,800 520,000

9 10 Add lines 7 and 8 . . . . Incomeline 6 less line 9 . . . . . . .
Premiums on life insurance 2,800

. . . . . .
145,000 148,000 372,000
FIGURE C:3-5
VALLEY CORPORATIONS FORM 1120 SCHEDULE M-1 (EXAMPLE C:3-51)
Appendix B provides an example of Schedule M-3 using the data from Example C:350. Valley Corporation in that example is too small to be required to use Schedule M-3 although it may elect to do so. Nevertheless, that data is used to allow for comparison of Schedules M-1 and M-3. Note that Lines 1 and 2 of Schedule M-3, Part III, break the $151,640 federal income tax expense into its current and deferred components. The current expense ties to the current tax liability ($124,100), and the deferred expense ties to the change in net deferred tax liabilities and assets arising from temporary differences, specifically, depreciation, net capital loss, prepaid rent, and bad debt expense [$27,540 0.34 ($110,000 $12,000 $8,000 $9,000)]. These temporary differences appear in Column b of Schedule M-3, Parts II and III. SCHEDULE M-2 (OF FORM 1120). Schedule M-2 of Form 1120 requires an analysis of changes in unappropriated retained earnings from the beginning of the year to the end of the year. The schedule supplies the IRS with information regarding dividends paid during the year and any special transactions that caused a change in retained earnings for the year. Schedule M-2 starts with the balance in the unappropriated retained earnings account at the beginning of the year. The following items, which must be added to the beginning balance amount, are listed on the left side of the schedule: Net income per books Other increases (e.g., refund of federal income taxes paid in a prior year taken directly to the retained earnings account instead of used to reduce federal income tax expense) The following items, which must be deducted from the beginning balance amount, are listed on the right side of the schedule: Dividends (e.g., cash or property) Other decreases (e.g., appropriation of retained earnings made during the tax year) The result is the amount of unappropriated retained earnings at the end of the year.
In the current year, Beta Corporation reports net income and other capital account items as follows: Unappropriated retained earnings, January 1, current year Net income Federal income tax refund for capital loss carryback Cash dividends paid in the current year Unappropriated retained earnings, December 31, current year Beta Corporations Schedule M-2 appears in Figure C:3-6. $400,000 350,000 15,000 250,000 515,000
ADDITIONAL COMMENT
Schedule M-2 requires an analysis of a corporations retained earnings. Retained earnings is a financial accounting number that has little relevance to tax accounting. It would seem much more worthwhile for the IRS to require an analysis of a corporations earnings and profits, which is an extremely important number in determining the taxation of a corporation and its shareholders.
EXAMPLE C:3-52
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Topic Review C:3-2 summarizes the requirements for paying the taxes due and filing the corporate tax return.
Schedule M-2
1 2 3
Analysis of Unappropriated Retained Earnings per Books

. . . . . . . .
Balance at beginning of year Net income (loss) per books . Other increases (itemize):
400,000 350,000 15,000 765,000
a Cash . . b Stock . . c Property . Other decreases (itemize):
Distributions:
. . .
. . .
250,000
Add lines 1, 2, and 3 .
Federal tax refund

. .
7 8
Add lines 5 and 6 . . . . . . . Balance at end of year (line 4 less line 7) .
250,000 515,000
FIGURE C:3-6
BETA CORPORATIONS FORM 1120 SCHEDULE M-2 (EXAMPLE C:3-52)
FI N A N C I A L
OBJECTIVE
S TAT E M E N T I M P L I C AT I O N S
Determine the financial statement implications of federal income taxes
The book-tax differences discussed on pages C:3-39 and C:3-40 have implications not only for preparing the reconciliation Schedules M-1 and M-3 but also affect how a firms financial statements present income taxes. Income taxes impact both the income statement and balance sheet. For example, the tax section of the income statement might appear as follows: Net income before federal income taxes Minus: Federal income tax expense Net income Moreover, the income tax expense (also called the total tax provision) usually breaks down into a current component and a deferred component. The current component ties into the taxes payable for the current year, and the deferred component arises from booktax temporary differences. The income tax expense also can contain a state tax component. For this textbook, however, we focus primarily on federal income taxes. Financial statements usually publish details concerning its tax provision in a footnote to the financial statements. Temporary differences also create deferred tax liabilities and deferred tax assets, which appear on the balance sheet. The primary standard that dictates financial statement treatment is Accounting Standards Codification (ASC) 740, issued by the Financial Accounting Standards Board (FASB). This section first describes the basic principles of ASC 740 and then presents a comprehensive example to demonstrate its application.
Topic Review C:3-2
R e q u i r e m e n t s f o r P a y i n g Ta x e s D u e a n d F i l i n g Ta x R e t u r n s
1. Estimated Tax Requirement a. Corporations that expect to owe more than $500 in tax for the current year must pay four installments of estimated tax, each equal to 25% of its required annual payment. b. Taxes for which estimated payments are required of a C corporation include regular tax and alternative minimum tax, minus any tax credits. c. If a corporation is not a large corporation, its required annual payment is the lesser of 100% of the tax shown on the current years return or 100% of the tax shown on the preceding years return. d. If a corporation is a large corporation, its required annual payment is 100% of the tax shown on the current years return. Its first estimated tax payment may be based on the preceding years tax liability, but any shortfall must be made up when the second installment is due. e. Special rules apply if the corporation bases its estimated tax payments on the annualized income or adjusted seasonal income method. 2. Filing Requirements a. The corporate tax return is due by the fifteenth day of the third month after the end of the tax year. b. A corporate taxpayer may request an automatic six-month extension to file its tax return (but not to pay its tax due).
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SCOPE, OBJECTIVES, AND PRINCIPLES OF ASC 740 ASC 740 establishes principles of accounting for current income taxes and for deferred taxes arising from temporary differences. Specifically, ASC 740 addresses the financial statement consequences of the following events: Revenues, expenses, gains, or losses recognized for tax purposes in an earlier or later year than recognized for financial statement purposes Other events that create differences between book and tax bases of assets and liabilities Operating loss and tax credit carrybacks or carryforwards ASC 740 sets out two objectives: (1) to recognize current year taxes payable or refundable and (2) to recognize deferred tax liabilities and assets for the future tax consequences of events recognized in a firms financial statements or tax return. To implement these objectives, ASC 740 applies the following principles: Recognize a current tax liability or asset for taxes payable or refundable on current year tax returns Recognize a deferred tax liability or asset for future tax effects attributable to temporary differences and carryforwards Measure current and deferred tax liabilities and assets using only enacted tax law, not anticipated future changes Reduce deferred tax assets by the amount of tax benefits the firm does not expect to realize, based on available evidence and adjusted via a valuation allowance Interestingly, the only comment ASC 740 makes about permanent differences is that [s]ome events do not have tax consequences. Certain revenues are exempt from taxation and certain expenses are not deductible. In this context, ASC 740 does not mention certain events that do have tax consequences but, nevertheless, create permanent differences, for example, the dividends-received deduction and the U.S. production activities deduction. As we show later, permanent differences do not affect deferred taxes, but they do impact the firms effective tax rate. T E M P O R A RY D I F F E R E N C E S Similarly to the discussion on pages C:3-39 and C:3-40, the following lists describe events that generate temporary differences and thus deferred tax liabilities and deferred tax assets. Deferred tax liabilities and assets appear on a firms balance sheet. Deferred tax liabilities occur when: Revenue or gains are recognized earlier for book purposes than for tax purposes Expenses or losses are deductible earlier for tax purposes than for book purposes Tax basis of an asset is less than its book basis Tax basis of a liability exceeds its book basis Deferred tax assets occur when: Revenue or gains are recognized earlier for tax purposes than for book purposes Expenses or losses are deductible earlier for book purposes than for tax purposes Tax basis of an asset exceeds its book basis Tax basis of a liability is less than its book basis Operating loss or tax credit carryforwards exist D E F E R R E D TA X A S S E T S A N D T H E VA L U AT I O N A L L O WA N C E A deferred tax asset indicates that a firm will realize the tax benefit of an event some time in the future. For example, if the firm generates a net operating loss in the current year and, for tax purposes carries the loss forward, the firm will realize a tax benefit only if it earns sufficient future income to use the carryover before it expires. If the firm likely will not realize the entire tax benefit, it must record a valuation allowance to reflect the unrePrentice Hall's Federal Taxation 2012 Corporations, Partnerships, Estates & Trusts, Twenty Fifth Edition, by Kenneth E. Anderson, Thomas R. Pope, and John L. Kramer. Published by Prentice Hall. Copyright 2012 by Pearson Education, Inc.
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alizable portion. The valuation allowance is a contra-type account that reduces the deferred tax asset.
EXAMPLE C:3-53 Delta Corporations NOL carryover is $200,000, and it expects to realize (deduct) the entire carryover at a 34% tax rate. Thus, Deltas deferred tax asset is $68,000 ($200,000 0.34), and it makes the following book journal entry: Deferred tax asset Federal income tax expense (benefit) 68,000 68,000
Consequently, the deferred tax asset reduces the income tax expense or creates an income tax benefit. If Delta determines that it likely will realize (deduct) only $150,000 of the NOL carryover, it must record a $17,000 ($50,000 0.34) valuation allowance. Accordingly, Delta makes the following book journal entry: Deferred tax asset Valuation allowance Federal income tax expense (benefit) 68,000 17,000 51,000
ASC 740 specifically states that a deferred tax asset must be reduced by a valuation allowance if, based on the weight of evidence available, the firm more likely than not will fail to realize the benefit of the deferred tax asset. For this purpose, the term more likely than not means a greater than 50% likelihood. In assessing this likelihood, a firm must consider both negative and positive evidence, where negative evidence leads toward establishing a valuation allowance while positive evidence helps avoid a valuation allowance. ASC 740 lists several examples of each type of evidence. Examples of negative evidence include the following items: Cumulative losses in recent years A history of expiring loss or credit carryforwards Expected losses in the near future Unfavorable contingencies with future adverse effects Short carryback or carryover periods that might limit realization of the deferred tax asset Examples of positive evidence include the following items: Existing contracts or sales backlogs that will produce sufficient income to realize the deferred tax asset Excess of appreciated asset value over tax basis (i.e., built-in gain) sufficient to realize the deferred tax asset A strong earnings history aside from the event causing the deferred tax asset along with evidence that the event is an aberration In essence, a firm can realize (deduct) a deferred tax asset if it has sufficient taxable income to offset the deduction. ASC 740 suggests the following potential sources of such income: Future reversals of deferred tax liabilities Future taxable income other than reversing deferred tax liabilities Taxable income in carryback years assuming the tax law allows a carryback Taxable income from prudent and feasible tax planning strategies that a firm ordinarily would not take but nevertheless would pursue to realize an otherwise expiring deferred tax asset
A C C O U N T I N G F O R U N C E R TA I N TA X P O S I T I O N S ASC 740 also prescribes acceptable accounting for uncertain tax positions. This standard addresses the following basic situation: For tax purposes, a firm may take a position in claiming a tax benefit that might not be sustained under IRS scrutiny. The FASB, however, believes that, for determining the financial statement tax provision, such uncertain tax positions either should not be recognized or should be recognized only partially.
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REAL-WORLD EXAMPLE
The IRS has developed Schedule UTP for inclusion in Form 1120. This schedule requires certain taxpayers to provide information about their uncertain tax positions. The required information will provide the IRS a road map for auditing the tax return.
In applying the tax position standard, a firm takes a two-step approach. First, the firm determines whether the tax position has a more likely than not (greater than 50%) probability of being sustained upon an IRS examination. This determination requires substantial judgment and necessitates careful documentation for the financial statement audit and any IRS examination. If the tax position does not exceed this threshold, the firm cannot recognize the tax benefit for financial reporting purposes until one of the following three events occur: The position subsequently meets the more likely than not threshold. The firm favorably settles the tax issue with the IRS or in court. The statute of limitations on the transaction expires. If the firm determines that a tax position meets the more like than not threshold, it then must measure the amount of benefit it can recognize for financial reporting purposes. This measure is the largest amount of tax benefit that exceeds a 50% probability of realization upon settlement with the taxing authorities. Further details of this measurement process and other procedures under the tax position standard become quite complex and are beyond the scope of this textbook.
EXAMPLE C:3-54
Lambda Corporation claims a $1 million deduction on its tax return, which provides a $350,000 tax savings, assuming a 35% tax rate. After some analysis and judgment, management determines the deduction has only a 45% chance of being allowed should the IRS audit Lambdas tax return. Assume for simplicity that Lambda has no deferred tax assets or liabilities. Assume further that Lambdas pretax book income and taxable income equal $20 million after taking the $1 million deduction. Thus, Lambdas tax liability is $7 million. Under the tax position standard, Lambda makes the following journal entry (ignoring potential penalties and interest): Federal income tax expense Liability for unrecognized tax benefits Federal income taxes payable 7,350,000 350,000 7,000,000
Suppose in a subsequent period Lambda negotiates a settlement with the IRS that allows $200,000 of the deduction, and Lambda pays $280,000 tax on the $800,000 disallowed portion. Ignoring penalties and interest, Lambda would make the following journal entry: Liability for unrecognized tax benefits Cash Federal income tax expense EXAMPLE C:3-55 350,000 280,000 70,000
Assume the same facts as in Example C:3-54 except Lambda meets the more likely than not threshold. Lambda then measures the benefit more than 50% likely to be realized as $600,000 of the $1 million deduction taken. Thus, Lambda may not recognize $400,000 in determining its federal income tax expense for financial reporting purposes and, accordingly, makes the following journal entry: Federal income tax expense Liability for unrecognized tax benefits Federal income taxes payable 7,140,000 140,000 7,000,000
B A L A N C E S H E E T C L A S S I F I C AT I O N Deferred tax liabilities and assets must be classified as either current or noncurrent. If related to another asset or liability, the classification is the same as the related asset. For example, a deferred tax asset pertaining to a difference between book and tax bad debt expense is current because it relates to accounts receivable. On the other hand, a deferred tax liability pertaining to a difference between book and tax depreciation is noncurrent because it relates to fixed assets. If a deferred tax liability or asset does not relate to a particular asset or liability, it is classified as current or noncurrent depending on its expected reversal date. Once classified as current and noncurrent, all current deferred tax liabilities and assets must be netted and presented as one amount. Similarly, all noncurrent deferred tax liabilities and assets must be netted and presented as another amount.
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TA X P R O V I S I O N P R O C E S S The following steps outline the approach used in this chapter to provide for income taxes in the financial statements. This process addresses only federal income taxes.
1. Identify temporary differences by comparing the book and tax bases of assets and liabilities, and identify tax carryforwards. 2. Prepare roll forward schedules of temporary differences that tabulate cumulative differences and current-year changes. 3. In the roll forward schedules, apply the appropriate statutory tax rates to determine the ending balances of deferred tax assets and liabilities. 4. Adjust deferred tax assets by a valuation allowance if necessary. 5. Adjust the income tax expense for uncertain tax positions if necessary. 6. Determine current federal income taxes payable, which, in many cases, also is the current federal income tax expense for book purposes. 7. Determining the total federal income tax expense (benefit). 8. Prepare and record tax related journal entries. 9. Prepare a tax provision reconciliation. 10. Prepare the tax rate reconciliation. 11. Prepare financial statements. In practice, various firms may use slightly different approaches. For this chapter, however, the above steps provide a logical and systematic approach.
ADDITIONAL COMMENT
Determining the valuation allowance and uncertain tax position adjustments requires a great deal of professional judgment.
COMPREHENSIVE EXAMPLE YEAR 1 To provide comprehensiveness, this example continues with the facts set forth in Example C:3-51. Thus, when completed, the two examples together provide the financial statement implications of federal income taxes as well as the tax return reporting in Schedules M-1 and M-3 for Year 1 (2010). We then continue the example with events occurring in Year 2 (2011). In addition to the facts stated in Example C:3-51, Valley reports the following book and tax balance sheet items at the end of Year 1, prior to adjustment for tax related items. Step 11 below presents the completed book balance sheet after making tax related journal entries.
Assets: Book Tax Difference
Cash Accounts receivable Minus: Allowance for bad debts Net accounts receivable Investment in corporate stock Investment in tax-exempt bonds Inventory Fixed assets Minus: Accumulated depreciation Net fixed assets
Liabilities and stock equity:
$ 230,200 300,000 (9,000) 291,000 90,000 50,000 500,000 1,200,000 (60,000) 1,140,000 225,000 8,000 930,000 650,000
$ 230,200 300,000 0 300,000 90,000 50,000 500,000 1,200,000 (170,000) 1,030,000 225,000 0 930,000 650,000
$ 9,000
110,000
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Accounts payable Unearned rental income Long-term liabilities Common stock
8,000
Steps 1 through 3. The book and tax balance sheets above indicate the items where the book and tax bases differ, thereby indicating temporary differences. In addition, the facts from Example C:3-51 indicates a nondeductible net capital loss, which creates a carryforward.
The following three roll forward schedules calculate the deferred tax assets and deferred tax liability associated with these temporary differences. The beginning and ending balances for the balance sheet items reflect the differences between the book and tax bases for these assets and liabilities. In the first schedule, the deferred tax asset for the net accounts receivable is current because it relates to a current asset. The deferred tax asset for the unearned rental income is current because Valley expects to earn that income in the next year. In the second schedule, the example assumes Valley does not expect to have sufficient capital gains to offset the capital loss carryover until three years from now. Therefore, this deferred tax asset will not reverse next year and is considered noncurrent. In the third schedule, the deferred tax liability pertaining to fixed assets is noncurrent because it relates to a noncurrent asset.
Current deferred tax asset: Beg. of Year 1 End of Year 1 Change
Net accounts receivable Unearned rental income Total Times: Tax rate Current deferred tax asset
Noncurrent deferred tax asset:
$ $ $
0 0 0 0.34 0
$ 9,000 8,000 $ 17,000 0.34 $ 5,780

End of Year 1
$ 9,000 8,000 $ 17,000 $ 5,780

Change
Beg. of Year 1
Net capital loss Times: Tax rate Noncurrent deferred tax asset
Noncurrent deferred tax liability:
$ $
0 0.34 0
$ 12,000 0.34 $ 4,080

End of Year 1
$ 12,000 $ 4,080
Change
Beg. of Year 1
Net fixed assets Times: Tax rate Noncurrent deferred tax liability
$ $
0 0.34 0
$110,000 0.34 $ 37,400
$110,000 $ 37,400
The amounts in the change column also appear as book-tax differences in the book and tax income schedules in Example C:3-51. In those schedules, the differences occur in the related income or expense accounts, specifically, bad debt expense, prepaid rental income, and depreciation. One last aspect of these schedules needs mentioning. Specifically, the changes in the deferred tax assets and liabilities also represent the deferred federal tax expense or benefit for the current year. See Step 7 below. Step 4. Assuming evidence supports that Valley will realize the entire amount of its deferred tax assets, Valley need not establish a valuation allowance. Step 5. Assume that Valley requires no adjustments for uncertain tax positions. Step 6. As provided in Example C:3-51, current federal income taxes payable is $124,100. In this example, the current payable amount also is the current federal income tax expense for book purposes. (The equality of the current payable amount and the federal income tax expense may not occur, however, under some uncertain tax position situations and in other special circumstances.)
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Step 7. The net deferred federal tax expense from the roll forward schedules equals $27,540 ($37,400 $5,780 $4,080). Therefore, the total federal income tax expense for this year can be calculated as follows: Current federal income tax expense Deferred income tax expense Total federal income tax expense $124,100 27,540 $151,640
Step 8. Given the amounts determined in previous steps, Valley makes the following book journal entry: Current federal income tax expense Deferred federal income tax expense Current deferred tax asset Noncurrent deferred tax asset Noncurrent deferred tax liability Federal income taxes payable 124,100 27,540 5,780 4,080 37,400 124,100
Alternatively, Valley could make the following combined book journal entry: Total federal income tax expense Current deferred tax asset Net noncurrent deferred tax liability (37,400 Federal income taxes payable 151,640 5,780 4,080) 33,320 124,100
Step 9. As a cross check on the previous steps, Valley can prepare the following tax provision reconciliation: Net income before federal income taxes (FIT) Permanent differences: Nondeductible insurance premiums Tax-exempt income U.S. production activities deduction Dividends-received deduction Net income after permanent differences Temporary differences: Unearned rental income Net capital loss disallowed for tax Net accounts receivable (bad debt expense) Net fixed assets (depreciation)
ADDITIONAL COMMENT
This approach and the balance sheet approach may not always lead to the same result when enacted tax rates change, under some uncertain tax position situations, and in other special circumstances.
$488,200 2,800 (3,000) (35,000) (7,000) $446,000 8,000 12,000 9,000 (110,000) $365,000
Taxable income
Assuming no enacted change in future tax rates, net income after permanent differences times the tax rate results in the total federal income tax expense. Specifically, $446,000 0.34 $151,640. Similarly, taxable income times the tax rate results in current federal income taxes payable. Specifically, $365,000 0.34 $124,100. Step 10. A firms effective tax rate is its income tax expense divided by its pretax book income. Because the income tax expense is based on net income after adjustment for permanent differences (see Step 9), these differences cause a firms effective tax rate to differ from the statutory tax rate. In the footnotes to financial statements, firms reconcile the statutory tax rate to their effective tax rate. Accordingly, Valleys effective tax rate reconciliation is as follows:
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ADDITIONAL COMMENT
Remember that we are looking only at federal income taxes in these examples. Foreign, state, and local taxes also can affect a firms effective tax rate.
Statutory tax rate Nondeductible insurance premiums ($2,800/$488,200 34%) Tax-exempt income [($3,000)/$488,200 34%] U.S. production activities deduction [($35,000)/$488,200 34%] Dividends-received deduction [($7,000)/$488,200 34%] Effective tax rate ($151,640/$488,200)
34.00% 0.20% (0.21)% (2.44)% (0.49)% 31.06%
In practice, a firm would not disclose the detail shown here but would aggregate small percentage amounts into an other category. Also, if the enacted future tax rate changes, that change also would be reflected in this schedule. Step 11. At this point, Valley can complete its financial statements. The income statement appears in Example C:3-51, but the tax portion is repeated here.
Partial income statement:
Net income before federal income taxes Minus: Federal income tax expense Net income Effective tax rate ($151,640/$488,200)
$488,200 (151,640) $336,560 31.06%
As shown in Step 7, the total federal income tax expense has two components as follows: Current federal income tax expense Deferred income tax expense Total federal income tax expense The book balance sheet for Year 1 is as follows:
Assets:
$124,100 27,540 $151,640
Cash Accounts receivable Minus: Allowance for bad debts Investment in corporate stock Investment in tax-exempt bond Inventory Current deferred tax asset Fixed assets Minus: Accumulated depreciation Total assets
Liabilities and equity:
$ 230,200 $ 300,000 (9,000) 291,000 90,000 50,000 500,000 5,780 1,140,000 $2,306,980 $ 225,000 8,000 124,100 33,320 930,000 650,000 336,560 $2,306,980
$1,200,000 (60,000)
ADDITIONAL COMMENT
This example ignores estimated tax payments, so that the entire amount of federal income taxes payable appears on the balance sheet.
Accounts payable Unearned rental income Federal income taxes payable Noncurrent deferred liability ($37,400 Long-term liabilities Common stock Retained earnings Total liabilities and equity
$4,080)
COMPREHENSIVE EXAMPLE YEAR 2 Valley reports the following book and tax balance sheet items at the end of Year 2, prior to adjustment for tax related items. Pertinent to the temporary differences, in Year 2 Valley earned the rental income that was prepaid in Year 1 and did not collect additional amounts. It also adjusted its allowance for bad debts and claimed additional depreciation on fixed assets. It did not recognize any capital gains to offset the capital loss carryover. Step 11 below presents the completed book balance sheet after making tax related journal entries.
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Assets:
Book
Tax
Difference
Cash Accounts receivable Allowance for bad debts Net accounts receivable Investment in corporate stock Investment in tax-exempt bonds Inventory Fixed assets Accumulated depreciation Net fixed assets
Liabilities and stock equity:
$ 318,800 400,000 (37,000) 363,000 90,000 50,000 600,000 1,200,000 (180,000) 1,020,000 295,000 0 530,000 650,000
$ 318,800 400,000 0 400,000 90,000 50,000 600,000 1,200,000 (465,000) 735,000 295,000 0 530,000 650,000
$ 37,000
285,000
Accounts payable Unearned rental income Long-term liabilities Common stock
Valley also reports the following book income statement through net income before federal income taxes and tax return schedule through taxable income. The tax portion of the book income statement appears in Step 11.
Book Tax Difference
Gross receipts Minus: Cost of goods sold Gross profit from operations Plus: Dividends from less than 20%-owned corporations Tax-exempt income Prepaid rental income Minus: Operating expenses Depreciation Bad debt expense Business interest expense Insurance premiums on life insurance for key employee (Valley is the beneficiary) U.S. production activities deduction (rounded) Dividends-received deduction Net income before federal income taxes Taxable income
$2,000,000 (700,000) $1,300,000 15,000 3,200 8,000 (500,000) (120,000) (40,000) (60,000)
$2,000,000 (700,000) $1,300,000 15,000 0 0 (500,000) (295,000) (12,000) (60,000)
$ (3,200) (8,000) (175,000) 28,000
(3,500) 0 0 $ 602,700
0 (39,000) (10,500)
3,500 (39,000) (10,500)
$ 398,500
Steps 1 through 3. The book and tax balance sheets above indicate the items where the book and tax bases differ, thereby indicating temporary differences. In addition, the net capital loss carryforward remains unused. The following three roll forward schedules calculate the deferred tax assets and deferred tax liability associated with these temporary differences. The beginning and ending balances for the balance sheet items reflect the differences between the book and tax bases for these assets and liabilities. In the first schedule, the net accounts receivable temporary difference increases, and the unearned rental income item reverses. In the second schedule, Valley has not realized the deferred tax asset because it recognized no capital gains in Year 2. Therefore, this deferred tax asset has not yet reversed. In the third schedule, the fixed asset temporary difference increases.
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3-52 Corporations Chapter 3 Current deferred tax asset: Beg. of Year 2 End of Year 2 Change
Net accounts receivable Unearned rental income Total Times: Tax rate Current deferred tax asset
Noncurrent deferred tax asset:
9,000 8,000 $ 17,000 0.34 $ 5,780
$ 37,000 0 $ 37,000 0.34 $ 12,580

End of Year 2
$ 28,000 (8,000) $ 20,000 $ 6,800

Change
Beg. of Year 2
Net capital loss Times: Tax rate Noncurrent deferred tax asset
Noncurrent deferred tax liability:
$ 12,000 0.34 $ 4,080

Beg. of Year 2
$ 12,000 0.34 $ 4,080

End of Year 2
$ $
0 0
Change
Net fixed assets Times: Tax rate Noncurrent deferred tax liability
$110,000 0.34 $ 37,400
$285,000 0.34 $ 96,900
$175,000 $ 59,500
The amounts in the change column also appear as book-tax differences in the above book and tax income schedules. In those schedules, the differences occur in the related income or expense accounts, specifically, bad debt expense, prepaid rental income, and depreciation. As before, the changes in the deferred tax assets and liabilities also represent the deferred federal tax expense or benefit for the current year. See Step 7 below. Step 4. Assuming evidence supports that Valley still will realize the entire amount of its deferred tax assets, Valley need not establish a valuation allowance. Step 5. Assume again that Valley requires no adjustments for uncertain tax positions. Step 6. As provided in the schedule above, taxable income is $398,500. Therefore, current federal income taxes payable is $135,490 ($398,500 0.34). In this example, the current payable amount also is the current federal income tax expense for book purposes. (The equality of the current payable amount and the federal income tax expense may not occur, however, under some uncertain tax position situations and in other special circumstances.) Step 7. The net deferred federal tax expense from the roll forward schedules equals $52,700 ($59,500 $6,800). Therefore, the total federal income tax expense for this year can be calculated as follows: Current federal income tax expense Deferred income tax expense Total federal income tax expense $135,490 52,700 $188,190
Step 8. Given the amounts determined in previous steps, Valley makes the following book journal entry: Current federal income tax expense Deferred federal income tax expense Current deferred tax asset Noncurrent deferred tax liability Federal income taxes payable 135,490 52,700 6,800 59,500 135,490
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Alternatively, Valley could make the following combined book journal entry: Total federal income tax expense Current deferred tax asset Noncurrent deferred tax liability Federal income taxes payable 188,190 6,800 59,500 135,490
Step 9. As a cross check on the previous steps, Valley can prepare the following tax provision reconciliation: Net income before federal income taxes (FIT) Permanent differences: Nondeductible insurance premiums Tax-exempt income U.S. production activities deduction Dividends-received deduction Net income after permanent differences Temporary differences: Unearned rental income Net accounts receivable (bad debt expense) Net fixed assets (depreciation) Taxable income
ADDITIONAL COMMENT
This approach and the balance sheet approach may not always lead to the same result when enacted tax rates change, under some uncertain tax position situations, and in other special circumstances.
$602,700 3,500 (3,200) (39,000) (10,500) $553,500 (8,000) 28,000 (175,000) $398,500
Assuming no enacted change in future tax rates, net income after permanent differences times the tax rate results in the total federal income tax expense. Specifically, $553,500 0.34 $188,190. Similarly, taxable income times the tax rate results in current federal income taxes payable. Specifically, $398,500 0.34 $135,490. Step 10. Valleys Year 2 effective tax rate is its income tax expense divided by its pretax book income, or $188,190/$602,700 31.23% (rounded up). Accordingly, Valleys effective tax rate reconciliation is as follows: Statutory tax rate Nondeductible insurance premiums ($3,500/$602,700 34%) Tax-exempt income [($3,200)/$602,700 34%] U.S. production activities deduction [($39,000)/$602,700 34%] Dividends-received deduction [($10,500)/$602,700 34%] Effective tax rate ($188,190/$602,700) 34.00% 0.20% (0.18)% (2.20)% (0.59)% 31.23%
Step 11. At this point, Valley can complete its financial statements. The first part of the income statement appears in the schedule appearing before Steps 1 through 3, and the tax portion is as follows:
Partial income statement:
Net income before federal income taxes Minus: Federal income tax expense Net income Effective tax rate ($188,190/$602,700)
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$602,700 (188,190) $414,510 31.23%
As shown in Step 7, the federal income tax expense has two components as follows: Current federal income tax expense Deferred income tax expense ($59,500 Total federal income tax expense $6,800) $135,490 52,700 $188,190
The book balance sheet for Year 2 is as follows:

Assets:
Cash Accounts receivable Minus: Allowance for bad debts Investment in corporate stock Investment in tax-exempt bond Inventory Current deferred tax asset Fixed assets Minus: Accumulated depreciation Total assets
ADDITIONAL COMMENT
This example ignores estimated tax payments, so the entire amount of federal income taxes payable appears on the balance sheet.
$ 318,800 $ 400,000 (37,000) 363,000 90,000 50,000 600,000 12,580 1,020,000 $2,454,380
$1,200,000 (180,000)
Liabilities and equity:
Accounts payable Unearned rental income Federal income taxes payable Noncurrent deferred liability ($96,900 Long-term liabilities Common stock Retained earnings Total liabilities and equity
$4,080)
$ 295,000 0 135,490 92,820 530,000 650,000 751,070 $2,454,380
OTHER TRANSACTIONS Chapters C:5, C:7, C:8, and C:16 describe the financial statement implications of other transactions, for example, the alternative minimum tax (Chapter C:5), corporate acquisitions (Chapter C:7), intercompany transactions (Chapter C:8), and the foreign tax credit and deferred foreign earnings (Chapter C:16). Also, Problem C:3-64 provides a comprehensive tax return and financial accounting exercise.
PR O B L E M
C:3-1
M A T E R I A L S
High Corporation incorporates on May 1 and begins business on May 10 of the current year. What alternative tax years can High elect to report its initial years income? Port Corporation wants to change its tax year from a calendar year to a fiscal year ending June 30. Port is a C corporation owned by 100 shareholders, none of whom own more than 5% of the stock. Can Port change its tax year? If so, how can it accomplish the change? Stan and Susan, two calendar year taxpayers, are starting a new business to manufacture and sell digital circuits. They intend to incorporate the business with $600,000 of their own capital and $2 million of equity capital obtained from other investors. The company expects to incur organizational and start-up expenditures of $100,000 in the first year. Inventories are a material incomeproducing factor. The company also expects to incur losses of $500,000 in the first two years of operations and substantial research and development expenses during the first three years. The company expects to break even in the third year and be profitable at the end of the fourth year, even though the nature of the digital circuit business will require continual research and development activities. What accounting methods and tax elections must Stan and Susan consider in their first year of operation? For each method and election, explain the possible alternatives and the advantages and disadvantages of each alternative.
C:3-4 C:3-5 C:3-6 C:3-7
C:3-2
C:3-3
Compare the tax treatment of capital gains and losses by a corporation and by an individual.
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Explain the effect of the Sec. 291 recapture rule when a corporation sells depreciable real estate. What are organizational expenditures? How are they treated for tax purposes? What are start-up expenditures? How are they treated for tax purposes?
The Corporate Income Tax Corporations 3-55 C:3-8
Describe three ways in which the treatment of charitable contributions by individual and corporate taxpayers differ. Carver Corporation uses the accrual method of accounting and the calendar year as its tax year. Its board of directors authorizes a cash contribution on November 3, 2011, that the corporation pays on March 9, 2012. In what year(s) is it deductible? What happens if the corporation does not pay the contribution until April 20, 2012? puters) to State University for use in its mathematics program. The computers have a $1,225 cost basis and an $2,800 FMV. How much is Zeros charitable contribution deduction for the computers? (Ignore the 10% limit.)
C:3-16 Budget Corporation is a personal service corpora-
C:3-9
tion. Its taxable income for the current year is $75,000. What is Budgets income tax liability for the year? C:3-17 Why do special restrictions on using the progressive corporate tax rates apply to controlled groups of corporations?
C:3-18 Describe the three types of controlled groups. C:3-19
List five restrictions on claiming multiple tax benefits that apply to controlled groups of corporations. tages of filing a consolidated tax return?
C:3-10 Zero Corporation contributes inventory (com-
C:3-20 What are the major advantages and disadvanC:3-21
What are the tax advantages of substituting fringe benefits for salary paid to a shareholder-employee?
C:3-22 Explain the tax consequences to both the corpo-
C:3-11 Why are corporations allowed a dividends-
received deduction? What dividends qualify for this special deduction?

C:3-12 Why is a dividends-received deduction disallowed
if the stock on which the corporation pays the dividend is debt-financed?

C:3-13 Crane Corporation incurs a $75,000 NOL in the
current year. In which years can Crane use this NOL if it makes no special elections? When might a special election to forgo the carryback of the NOL be beneficial for Crane?
C:3-14 What special restrictions apply to the deduction
ration and a shareholder-employee if an IRS agent determines that a portion of the compensation paid in a prior tax year exceeds a reasonable compensation level. C:3-23 What is the advantage of a special apportionment plan for the benefits of the 15%, 25%, and 34% tax rates to members of a controlled group? C:3-24 What corporations must pay estimated taxes? When are the estimated tax payments due?
C:3-25 What is a large corporation for purposes of the
estimated tax rules? What special rules apply to such large corporations?
C:3-26 What penalties apply to the underpayment of
of a loss realized on the sale of property between a corporation and a shareholder who owns 60% of the corporations stock? What restrictions apply to the deduction of expenses accrued by a corporation at year-end and owed to a cash method shareholder who owns 60% of the corporations stock?
C:3-15 Deer Corporation is a C corporation. Its taxable
estimated taxes? The late payment of the remaining tax liability? C:3-27 Describe the situations in which a corporation must file a tax return.
C:3-28 When is a corporate tax return due for a calen-
dar-year taxpayer? What extension(s) of time in which to file the return are available?
C:3-29 List four types of differences that can cause a cor-
income for the current year is $200,000. What is Deer Corporations income tax liability for the year?
porations book income to differ from its taxable income.
ISSUE IDENTIFICATION QUESTIONS

C:3-30
C:3-31
X-Ray Corporation received a $100,000 dividend from Yancey Corporation this year. X-Ray owns 10% of the Yanceys single class of stock. What tax issues should X-Ray consider with respect to its dividend income? Williams Corporation sold a truck with an adjusted basis of $100,000 to Barbara for $80,000. Barbara owns 25% of the Williams stock. What tax issues should Williams and Barbara consider with respect to the sale/purchase? You are the CPA who prepares the tax returns for Don, his wife, Mary, and their two corporations. Don owns 100% of Pencil Corporations stock. Pencils current year taxable income is $100,000. Mary owns 100% of Eraser Corporations stock. Erasers current year taxable income is $150,000. Don and Mary file a joint federal income tax return. What issues should Don and Mary consider with respect to the calculation of the three tax return liabilities? Rugby Corporation has a $50,000 NOL in the current year. Rugbys taxable income in each of the previous two years was $25,000. Rugby expects its taxable income for next year to exceed $400,000. What issues should Rugby consider with respect to the use of the NOL?
C:3-32
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C:3-33
PROBLEMS
C:3-34
Depreciation Recapture. Young Corporation purchased residential real estate several year ago for $225,000, of which $25,000 was allocated to the land and $200,000 was allocated to the building. Young took straight-line MACRS deductions of $30,000 during the years it held the property. In the current year, Young sells the property for $285,000, of which $60,000 is allocated to the land and $225,000 is allocated to the building. What are the amount and character of Youngs recognized gain or loss on the sale? Organizational and Start-up Expenditures. Delta Corporation incorporates on January 7, begins business on July 10, and elects to have its initial tax year end on October 31. Delta incurs the following expenses between January and October related to its organization during the current year:
Date Expenditure Amount
C:3-35
January 30 May 15 May 30 May 30 June 1 June 5 June 10 June 15 July 15
Travel to investigate potential business site Legal expenses to draft corporate charter Commissions to stockbroker for issuing and selling stock Temporary directors fees Expense of transferring building to Delta Accounting fees to set up corporate books Training expenses for employees Rent expense for June Rent expense for July
$2,000 2,500 4,000 2,500 3,000 1,500 5,000 1,000 1,000
a. What alternative treatments are available for Deltas expenditures? b. What amount of organizational expenditures can Delta Corporation deduct on its first tax return for the fiscal year ending October 31? c. What amount of start-up costs can Delta Corporation deduct on its first tax return?
C:3-36
Charitable Contribution of Property. Yellow Corporation donates the following property to the State University: ABC Corporation stock purchased two years ago for $18,000. The stock, which trades on a regional stock exchange, has a $25,000 FMV on the contribution date. Inventory with a $17,000 adjusted basis and a $22,000 FMV. State will use the inventory for scientific research that qualifies under the special Sec. 170(e)(4) rules. An antique vase purchased two years ago for $10,000 and having an $18,000 FMV. State University plans to sell the vase to obtain funds for educational purposes. Yellow Corporations taxable income before any charitable contributions deduction, NOL or capital loss carryback, or dividends-received deduction is $250,000. a. What is Yellow Corporations charitable contributions deduction for the current year? b. What is the amount of its charitable contributions carryover (if any)? Charitable Contributions of Property. Blue Corporation donates the following property to Johnson Elementary School: XYZ Corporation stock purchased two years ago for $25,000. The stock has a $19,000 FMV on the contribution date. ABC Corporation stock purchased three years ago for $2,000. The stock has a $16,000 FMV on the contribution date. PQR Corporation stock purchased six months ago for $12,000. The stock has an $18,000 FMV on the contribution date. The school will sell the stock and use the proceeds to renovate a classroom to be used as a computer laboratory. Blues taxable income before any charitable contribution deduction, dividends-received deduction, or NOL or capital loss carryback is $400,000. a. What is Blues charitable contributions deduction for the current year? b. What is Blues charitable contribution carryback or carryover (if any)? In what years can it be used? c. What would have been a better tax plan concerning the XYZ stock donation? Charitable Contribution Deduction Limitation. Zeta Corporation reports the following results for Year 1 and Year 2:
C:3-37
ISBN 1-256-33710-2
C:3-38
The Corporate Income Tax Year 1
Corporations 3-57 Year 2
Adjusted taxable income Charitable contributions (cash)
$180,000 20,000
$125,000 12,000
The adjusted taxable income is before Zeta claims any charitable contributions deduction, NOL or capital loss carryback, dividends-received deduction, or U.S. production activities deduction. a. How much is Zetas charitable contributions deduction in Year 1? In Year 2? b. What is Zetas contribution carryover to Year 3, if any?
C:3-39
Taxable Income Computation. Omega Corporation reports the following results for the current year: Gross profits on sales Dividends from less-than-20%-owned domestic corporations Operating expenses Charitable contributions (cash) $120,000 40,000 100,000 11,000
a. What is Omegas charitable contributions deduction for the current year and its charitable contributions carryover to next year, if any? b. What is Omegas taxable income for the current year, assuming qualified production activities income is $20,000?
C:3-40
Dividends-Received Deduction. Theta Corporation reports the following results for the current year: Gross profits on sales Dividends from less-than-20%-owned domestic corporations Operating expenses $220,000 100,000 218,000
a. What is Thetas taxable income for the current year, assuming qualified production activities income is $2,000? b. How would your answer to Part a change if Thetas operating expenses are instead $234,000, assuming qualified production activities income is zero or negative? c. How would your answer to Part a change if Thetas operating expenses are instead $252,000, assuming qualified production activities income is zero or negative? d. How would your answers to Parts a, b, and c change if Theta received $75,000 of the dividends from a 20%-owned corporation and the remaining $25,000 from a lessthan-20%-owned corporation?
C:3-41
Stock Held 45 Days or Less. Beta Corporation purchased 100 shares of Gamma Corporation common stock (less than 5% of the outstanding stock) two days before the ex-dividend date for $200,000. Beta receives a $10,000 cash dividend from Gamma. Beta sells the Gamma stock one week after purchasing it for $190,000. What are the tax consequences of these three events? Debt-financed Stock. Cheers Corporation purchased for $500,000 5,000 shares of Beer Corporation common stock (less than 5% of the outstanding Beer stock) at the beginning of the current year. It used $400,000 of borrowed money and $100,000 of its own cash to make this purchase. Cheers paid $50,000 of interest on the debt this year. Cheers received a $40,000 cash dividend on the Beer stock on September 1 of the current year. a. What amount can Cheers deduct for the interest paid on the loan? b. What dividends-received deduction can Cheers claim with respect to the dividend? Net Operating Loss Carrybacks and Carryovers. In 2011, Ace Corporation reports gross income of $200,000 (including $150,000 of profit from its operations and $50,000 in dividends from less-than-20%-owned domestic corporations) and $220,000 of operating expenses. Aces 2009 taxable income (all ordinary income) was $75,000, on which it paid taxes of $13,750. a. What is Aces NOL for 2011? b. What is the amount of Aces tax refund if Ace carries back the 2011 NOL to 2009? c. Assume that Ace expects 2012s taxable income to be $400,000. Ignore the U.S. production activities deduction. What election could Ace make to increase the tax benefit from its NOL? What is the dollar amount of the expected benefit (if any)? Assume a 10% discount rate as a measure of the time value of money.
C:3-42
C:3-43
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3-58 Corporations
Chapter 3
C:3-44
Ordering of Deductions. Beta Corporation reports the following results for the current year: Gross income from operations Dividends from less-than-20%-owned domestic corporations Operating expenses Charitable contributions $180,000 100,000 150,000 20,000
C:3-45
C:3-46
C:3-47
In addition, Beta has a $50,000 NOL carryover from the preceding tax year, and its qualified production activities income is $30,000. a. What is Betas taxable income for the current year? b. What carrybacks or carryovers are available to other tax years? Sale to a Related Party. Union Corporation sells a truck for $18,000 to Jane, who owns 70% of its stock. The truck has a $24,000 adjusted basis on the sale date. Jane sells the truck to an unrelated party, Mike, for $28,000 two years later after claiming $5,000 in depreciation. a. What is Unions realized and recognized gain or loss on selling the truck? b. What is Janes realized and recognized gain or loss on selling the truck to Mike? c. How would your answers to Part b change if Jane instead sold the truck for $10,000? Payment to a Cash Basis Employee-Shareholder. Value Corporation is a calendar year taxpayer that uses the accrual method of accounting. On December 10 of the current year, Value accrues a bonus payment of $100,000 to Brett, its president and sole shareholder. Brett is a calendar year taxpayer who uses the cash method of accounting. a. When can Value deduct the bonus if it pays it to Brett on March 11 of next year? On March 18 of next year? b. How would your answers to Part a change if Brett were an employee of Value who owns no stock in the corporation? Capital Gains and Losses. Western Corporation reports the following results for the current year: Gross profits on sales Long-term capital gain Long-term capital loss Short-term capital gain Short-term capital loss Operating expenses $150,000 8,000 15,000 10,000 2,000 61,000
C:3-48
C:3-49
C:3-50
a. What are Westerns taxable income and income tax liability for the current year, assuming qualified production activities income is $89,000? b. How would your answers to Part a change if Westerns short-term capital loss is $5,000 instead of $2,000? Computing the Corporate Income Tax Liability. What is Beta Corporations income tax liability assuming its taxable income is (a) $94,000, (b) $300,000, and (c) $600,000. How would your answers change if Beta were a personal service corporation? Computing the Corporate Income Tax Liability. Fawn Corporation, a C corporation, paid no dividends and recognized no capital gains or losses in the current year. What is its income tax liability assuming its taxable income for the year is a. $50,000 b. $14,000,000 c. $18,000,000 d. $34,000,000 Computing Taxable Income and Income Tax Liability. Pace Corporation reports the following results for the current year: Gross profit on sales Long-term capital loss Short-term capital loss Dividends from 40%-owned domestic corporation Operating expenses Charitable contributions $120,000 10,000 5,000 30,000 65,000 10,000
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a. What are Paces taxable income and income tax liability, assuming qualified production activities income is $55,000? b. What carrybacks and carryovers (if any) are available and to what years must they be carried?
The Corporate Income Tax C:3-51
Corporations 3-59
Computing Taxable Income and Income Tax Liability. Roper Corporation reports the following results for the current year: Gross profits on sales Short-term capital gain Long-term capital gain Dividends from 25%-owned domestic corporation NOL carryover from the preceding tax year Operating expenses $80,000 40,000 25,000 15,000 9,000 45,000
C:3-52
What are Ropers taxable income and income tax liability, assuming qualified production activities income is $35,000? Controlled Groups. Which of the following groups constitute controlled groups? (Any stock not listed below is held by unrelated individuals each owning less than 1% of the outstanding stock.) For brother-sister corporations, which definition applies? a. Judy owns 90% of the single classes of stock of Hot and Ice Corporations. b. Jones and Kane Corporations each have only a single class of stock outstanding. The two controlling individual shareholders own the stock as follows:
Stock Ownership Percentages Shareholder Jones Corp. Kane Corp.
Tom Mary
60% 30%
80% 0%
c. Link, Model, and Name Corporations each have a single class of stock outstanding. The stock is owned as follows:
Stock Ownership Percentages Shareholder Model Corp. Name Corp.
Link Corp. Model Corp.
80%
50% 40%
Link Corporations stock is widely held by over 1,000 shareholders, none of whom owns directly or indirectly more than 1% of Links stock. d. Oat, Peach, Rye, and Seed Corporations each have a single class of stock outstanding. The stock is owned as follows:
Stock Ownership Percentages Shareholder Oat Corp. Peach Corp. Rye Corp. Seed Corp.
Bob Oat Corp. Rye Corp.

C:3-53
100%
90% 80% 30% 60%
Controlled Groups of Corporations. Sally owns 100% of the outstanding stock of Eta, Theta, Phi, and Gamma Corporations, each of which files a separate return for the current year. During the current year, the corporations report taxable income as follows:
Corporation Taxable Income
Eta Theta Phi Gamma
$40,000 (25,000) 50,000 10,000
C:3-54
a. What is each corporations separate tax liability, assuming the corporations do not elect a special apportionment plan for allocating the corporate tax rates? b. What is each corporations separate tax liability, assuming the corporations make a special election to apportion the reduced corporate tax rates in such a way that minimizes the groups total tax liability? Note: More than one plan can satisfy this goal. c. How does the result in Part b change if Gammas income is $30,000 instead of $10,000? Compensation Planning. Marilyn owns all of Bell Corporations stock. Bell is a C corporation and employs 40 people. Marilyn is married, has two dependent children, and files a joint tax return with her husband. She projects that Bell will report $400,000 of pretax
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3-60 Corporations
Chapter 3
profits for the current year. Marilyn is considering five salary levels as shown below. Ignore the U.S. production activities deduction for this problem.
Total Income Salary Paid to Marilyn Earnings Retained by Bell Corporation Tax Liability Marilyn Bell Corporation Total
$400,000 400,000 400,000 400,000 400,000
$ 0 $100,000 200,000 300,000 400,000
$400,000 300,000 200,000 100,000 0
C:3-55
C:3-56
C:3-57
a. Determine the total tax liability for Marilyn and Bell for each of the five proposed salary levels. Assume no other income for Marilyns family, and assume that Marilyn and her husband claim a combined itemized deduction and personal exemption of $30,000 regardless of AGI levels. Ignore employment taxes. b. What recommendations can you make about a salary level for Marilyn that will minimize the total tax liability? Assume salaries paid up to $400,000 are considered reasonable compensation. c. What is the possible disadvantage to Marilyn if Bell retains funds in the business and distributes some of the accumulated earnings as a dividend in a later tax year? Fringe Benefits. Refer to the facts in Problem C:3-54. Marilyn has read an article explaining the advantages of paying nontaxable fringe benefits (premiums on group term life insurance, accident and health insurance, etc.) and having deferred compensation plans (e.g., qualified pension and profit-sharing plans). Provide Marilyn with information on the tax savings associated with converting $3,000 of her salary into nontaxable fringe benefits. What additional costs might Bell Corporation incur if it adopts a fringe benefit plan? Estimated Tax Requirement. Zeta Corporations taxable income for 2010 was $1.5 million, on which Zeta paid federal income taxes of $510,000. Zeta estimates calendar year 2011s taxable income to be $2 million, on which it will owe $680,000 in federal income taxes. a. What are Zetas minimum quarterly estimated tax payments for 2011 to avoid an underpayment penalty? b. When is Zetas 2011 tax return due? c. When are any remaining taxes due? What amount of taxes are due when Zeta files its return assuming Zeta timely pays estimated tax payments equal to the amount determined in Part a? d. If Zeta obtains an extension to file, when is its tax return due? Will the extension permit Zeta to delay making its final tax payments? Filing the Tax Return and Paying the Tax Liability. Wright Corporations taxable income for calendar years 2008, 2009, and 2010 was $120,000, $150,000, and $100,000, respectively. Its total tax liability for 2010 was $22,250. Wright estimates that its 2011 taxable income will be $500,000, on which it will owe federal income taxes of $170,000. Assume Wright earns its 2011 taxable income evenly throughout the year. a. What are Wrights minimum quarterly estimated tax payments for 2011 to avoid an underpayment penalty? b. When is Wrights 2011 tax return due? c. When are any remaining taxes due? What amount of taxes are due when Wright files its return assuming it timely paid estimated tax payments equal to the amount determined in Part a? d. How would your answer to Part a change if Wrights tax liability for 2010 had been $200,000? Converting Book Income to Taxable Income. The following income and expense accounts appeared in the book accounting records of Rocket Corporation, an accrual basis taxpayer, for the current calendar year.
Book Income Account Title Debit Credit
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C:3-58
Net sales Dividends Interest Gain on sale of stock Key-person life insurance proceeds
$3,230,000 10,000 (1) 18,000 (2) 9,000 (3) 100,000
The Corporate Income Tax
Corporations 3-61
Cost of goods sold Salaries and wages Bad debts Payroll taxes Interest expense Charitable contributions Depreciation Other expenses Federal income taxes Net income Total
$2,000,000 500,000 13,000 (4) 62,000 12,000 (5) 50,000 (6) 70,000 (7) 40,000 (8) 166,000 454,000 $3,367,000 $3,367,000
The following additional information applies. 1. Dividends were from Star Corporation, a 30%-owned domestic corporation. 2. Interest revenue consists of interest on corporate bonds, $15,000; and municipal bonds, $3,000. 3. The stock is a capital asset held for three years prior to sale. 4. Rocket uses the specific writeoff method of accounting for bad debts. 5. Interest expense consists of $11,000 interest incurred on funds borrowed for working capital and $1,000 interest on funds borrowed to purchase municipal bonds. 6. Rocket paid all contributions in cash during the current year to State University. 7. Rocket calculated depreciation per books using the straight-line method. For income tax purposes, depreciation amounted to $95,000. 8. Other expenses include premiums of $5,000 on the key-person life insurance policy covering Rockets president, who died in December. 9. Qualified production activities income is $300,000, and the applicable percentage is 9%. 10. Rocket has a $90,000 NOL carryover from prior years. Required: a. Prepare a worksheet reconciling Rockets book income with its taxable income (before special deductions). Six columns should be usedtwo (one debit and one credit) for each of the following three major headings: book income, Schedule M-1 adjustments, and taxable income. (See the sample worksheet with Form 1120 in Appendix B if you need assistance). b. Prepare a tax provision reconciliation as in Step 9 of the Tax Provision Process. Assume a 34% corporate tax rate.
C:3-59
Reconciling Book Income and Taxable Income. Zero Corporation reports the following results for the current year: Net income per books (after taxes) Federal income tax per books Tax-exempt interest income Interest on loan to purchase tax-exempt bonds MACRS depreciation exceeding book depreciation Net capital loss Insurance premium on life of corporate officer where Zero is the beneficiary Excess charitable contributions carried over to next year U.S. production activities deduction $290,000 150,000 6,000 8,000 30,000 5,000 4,000 3,000 14,000
Prepare a reconciliation of Zeros taxable income before special deductions with its book income.
C:3-60
Reconciling Unappropriated Retained Earnings. White Corporations financial accounting records disclose the following results for the period ending December 31 of the current year: Retained earnings balance on January 1 Net income for year Contingency reserve established on December 31 Cash dividend paid on July 23 $246,500 259,574 60,000 23,000
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What is Whites unappropriated retained earnings balance on December 31 of the current year?
C:3-61
Tax Reconciliation Process. Omega Corporation, a regular C corporation, presents you with the following partial book income statement for the current year:
3-62 Corporations
Chapter 3
Sales Cost of goods sold Gross profit Operating expenses: Depreciation Interest expense Warranty expense Fines and penalties Other business expenses Net operating income Other income (losses): Interest received on municipal bonds Income on installment sale Net losses on stock sales Net income before federal income taxes
$1,900,000 (1,100,000) $800,000 $ 80,000 18,000 12,000 10,000 220,000
(340,000) $460,000
1,000 9,000 (20,000)
(10,000) $450,000
Omega also provides the following partial balance sheet information:

Book Tax Beg. of Year End of Year Beg. of Year End of Year
Installment note receivable Minus: Unrecognized income on note Net basis of note receivable Tax-exempt bonds Current deferred asset Investment stocks Fixed assets Minus: Accumulated depreciation Net basis of fixed assets Liability for warranties Noncurrent deferred tax liability
0 0 0 18,000 5,100 100,000 400,000 (40,000) 360,000 0 13,600
$ 30,000 0 30,000 18,000 ? 40,000 400,000 (120,000) 280,000 12,000 ?
0 0 0
$ 30,000 (9,000) 21,000 18,000 0 40,000 400,000 (208,000) 192,000 0 0
18,000 0 100,000 400,000 (80,000) 320,000 0 0
You have gathered the following additional information: 1. Depreciation for tax purposes is $128,000. 2. Of the $18,000 interest expense, $2,000 is allocable to a loan used to purchase the municipal bonds. 3. The warranty expense is an estimated amount for book purposes. Omega expects actual claims on these warranties to be filed and paid next year. 4. Your research determines that the fines and penalties are not deductible for tax purposes. 5. In the current year, Omega sold property using the installment method as follows: Selling price Adjusted basis Gain $30,000 (21,000) $9,000
Omega obtains a $30,000 installment note receivable this year and will receive the $30,000 sales proceeds next year. For book purposes, Omega recognizes the $9,000 gain in the current year. For tax purposes, Omega will recognize the $9,000 gain next year when it receives the $30,000 sales proceeds. 6. Omega sold a significant portion of its stock portfolio in the current year. The $20,000 net loss per books from these stock sales includes the following components: Long-term capital gain Long-term capital loss Short-term capital gain $15,000 (38,000) 3,000
ISBN 1-256-33710-2
Corporations 3-63
7. 8. 9. 10. 11. 12.
Omega had no capital gains in prior years, so it cannot carry the net capital losses back. Omega does not expect to realize capital gains next year, but it does expect sufficient capital gains within the next five years so that it can use the capital loss carryover before it expires. Thus, Omega determines that it needs no valuation allowance. Omega has a $15,000 net operating loss carryover from last year, which it then expected to use in the next year (now the current year). Qualified production activities income for the current year equals $300,000, which is less than taxable income before the U.S. production activities deduction. The applicable percentage is 9%. Omegas tax rate is 34% and will remain so in future years. The beginning deferred tax asset pertains to the NOL carryover, and the beginning deferred tax liability pertains to fixed assets. Other deferred tax assets and deferred tax liabilities may arise in the current year. Omega determines that it needs no adjustment for uncertain tax positions.
C:3-62
Required: Perform the tax provision process steps as outlined in the text. For Step 11, just present partial income statement and balance sheet disclosures as allowed by the given facts. Valuation Allowance. In the current year, Alpha Corporation generated $500,000 of ordinary operating income and incurred a $20,000 capital loss on the sale of marketable securities from its investment portfolio. Alpha expects to generate $500,000 of ordinary operating income in each of the next five years. Alpha incurred no capital gains in its previous three years, so it must carry over the $20,000 capital loss for up to five years. Alpha estimates that its remaining marketable securities would produce a $12,000 capital gain if sold. Thus, Alpha determines that, more likely than not, the corporation will not realize (deduct) $8,000 of the current year capital loss. Alpha has no other book-tax differences and is subject to a 34% tax rate. Required: a. Determine Alphas deferred tax asset and valuation allowance for the current year. b. Determine Alphas current federal income tax expense, deferred federal income tax expense (benefit), total federal income tax expense, and federal income taxes payable. c. Prepare the journal entry necessary to record the above amounts. d. Prepare a tax provision reconciliation and effective tax rate reconciliation for the current year. Uncertain Tax Positions. In the current year, Kappa Corporation earned $1 million of net income before federal income taxes. This amount of book income includes a $100,000 expense for what the company considers an ordinary and necessary business expense. Kappa also deducted the entire $100,000 for tax purposes. In assessing the expense for its tax provision, Kappa determines that it has a more-likely-than-not probability of sustaining some portion of the deduction upon an IRS examination. However, some uncertainty remains as to whether the entire amount is deductible. Any amount ultimately disallowed by the IRS would be a permanent disallowance and not merely a temporary item that could be amortized over time. Upon further analysis, Kappa measures the benefit that is more than 50% likely to be realized as $70,000. Thus, Kappa may not recognize $30,000 of the expense in determining its federal income tax provision. In addition, Kappa has a $25,000 temporary difference that decreases its taxable income to $975,000 and increases its deferred tax liability. Required: a. Determine Kappas liability for unrecognized tax benefits, total federal income tax expense, deferred federal income tax expense, current federal income tax expense, increase in deferred tax liability, and federal income taxes payable. b. Prepare the journal entry necessary to record the current year tax provision.
C:3-63
COMPREHENSIVE PROBLEM
ISBN 1-256-33710-2
C:3-64
Jackson Corporation prepared the following book income statement for its year ended December 31, 2011: Sales Minus: Cost of goods sold Gross profit $950,000 (450,000) $500,000
3-64 Corporations
Chapter 3
Plus:
Dividends received on Invest Corporation stock Gain on sale of Invest Corporation stock Total dividends and gain Minus: Depreciation ($7,500 $52,000) Bad debt expense Other operating expenses Loss on sale of Equipment 1 Total expenses and loss Net income per books before taxes Minus: Federal income tax expense Net income per books Information on equipment depreciation and sale: Equipment 1: Acquired March 3, 2009 for $180,000 For books: 12-year life; straight-line depreciation Sold February 17, 2011 for $80,000 Sales price Cost Minus: Depreciation for 2009 (12 year) Depreciation for 2010 ($180,000/12) Depreciation for 2011 (12 year) Total book depreciation Book value at time of sale Book loss on sale of Equipment 1
$ 3,000 30,000 33,000 $ 59,500 22,000 105,500 70,000 (257,000) $276,000 (90,000) $186,000
$ 80,000 $180,000 $ 7,500 15,000 7,500 (30,000) (150,000) $(70,000)
For tax: Seven-year MACRS property for which the corporation made no Sec. 179 election in the acquisition year and elected out of bonus depreciation. Equipment 2: Acquired February 16, 2010 for $624,000 For books: 12-year life; straight-line depreciation Book depreciation in 2011: $624,000/12 $52,000 For tax: Seven-year MACRS property for which the corporation made the Sec. 179 election in 2010 but elected out of bonus depreciation. Other information: Under the direct writeoff method, Jackson deducts $15,000 of bad debts for tax purposes. Jackson has a $40,000 NOL carryover and a $6,000 capital loss carryover from last year. Jackson purchased the Invest Corporation stock (less than 20% owned) on June 21, 2009, for $25,000 and sold the stock on December 22, 2011, for $55,000. Jackson Corporation has qualified production activities income of $120,000, and the applicable percentage is 9%. Required: a. For 2011, calculate Jacksons tax depreciation deduction for Equipment 1 and Equipment 2, and determine the tax loss on the sale of Equipment 1. b. For 2011, calculate Jacksons taxable income and tax liability. c. Prepare a schedule reconciling net income per books to taxable income before special deductions (Form 1120, line 28).
ISBN 1-256-33710-2
TAX STRATEGY PROBLEM

C:3-65
Mike Barton owns Barton Products, Inc. The corporation has 30 employees. Barton Corporation expects $800,000 of net income before taxes in 2011. Mike is married and files a joint return with his wife, Elaine, who has no earnings of her own. They have one dependent son, Robert, who is 16 years old. Mike and Elaine have no other income and
Corporations 3-65
do not itemize. Mikes salary is $180,000 per year (already deducted in computing Barton Corporations $500,000 net income). Assume that variations in salaries will not affect the U.S. production activities deduction already reflected in taxable income. a. Should Mike increase his salary from Barton by $50,000 to reduce the overall tax burden to himself and Barton Products? Because of the Social Security cap, the corporation and Mike each would incur a 1.45% payroll tax with the corporate portion being deductible. b. Should Barton employ Mikes wife Elaine for $50,000 rather than increase Mikes salary? Take into consideration employment taxes as well as federal income taxes. Note, that Elaines salary would be well below the Social Security cap, so that she and the corporation each would incur the full amount of payroll taxes with the corporate portion being deductible. In 2011, Elaines portion is 5.65%, and the corporations is 7.65%. After 2011, Elaines portion is 7.65%.
TAX FORM/RETURN PREPARATION PROBLEMS

C:3-66
Knoxville Musical Sales, Inc. is located at 5500 Kingston Pike, Knoxville, TN 37919. The corporation uses the calendar year and accrual basis for both book and tax purposes. It is engaged in the sale of musical instruments with an employer identification number (EIN) of 75-2012010. The company incorporated on December 31, 2006, and began business on January 2, 2007. Table C:3-4 contains balance sheet information at January 1, 2010, and December 31, 2010. Table C:3-5 presents an income statement for 2010. These schedules are presented on a book basis. Other information follows the tables.
TABLE C:3-4
Knoxville Musical Sales, Inc.Book Balance Sheet Information

January 1, 2010 Debit Credit $ 108,439 429,570 $ 2,312,500 150,000 30,000 40,000 390,000 1,250,000 62,500 928,000 154,667 210,000 63,000 15,815 300,000 500,000 13,875 8,325 1,800,000 150,444 925,000 1,850,000 $5,864,324 $5,864,324 $9,078,010 14,436 270,000 400,000 17,344 13,875 79,541 2,500,000 560,020 925,000 3,817,939 $9,078,010 210,000 105,000 2,840,000 259,333 36,513 3,237,500 46,000 30,000 50,000 390,000 1,250,000 87,500 December 31, 2010 Debit Credit $ 510,574 499,500 $ 42,458
Account Cash Accounts receivable Allowance for doubtful accounts Inventory Investment in corporate stock Investment in municipal bonds Cash surrender value of insurance policy Land Buildings Accumulated depreciationBuildings Equipment Accumulated depreciationEquipment Trucks Accumulated depreciationTrucks Deferred tax asset Accounts payable Notes payable (short-term) Accrued payroll taxes Accrued state income taxes Accrued federal income taxes Bonds payable (long-term) Deferred tax liability Capital stockCommon Retain earningsUnappropriated Totals
ISBN 1-256-33710-2
3-66 Corporations
Chapter 3
TABLE C:3-5
Knoxville Musical Sales, Inc.Book Income Statement 2010

Sales Returns Net sales Beginning inventory Purchases Ending inventory Cost of goods sold Gross profit Expenses: Amortization Depreciation Repairs General ins. Net premium-Off. life ins. Officers compensation Other salaries Utilities Advertising Legal and accounting fees Charitable contributions Payroll taxes Interest expense Bad debt expense Total expenses Gain on sale of equipment Interest on municipal bonds Net gain on stock sales Dividend income Net income before income taxes Federal income tax expense State income tax expense Net income $2,312,500 5,087,500 (3,237,500) (4,162,500) $ 4,856,250 $ 0 229,267 19,240 50,875 41,625 601,250 370,000 66,600 44,400 46,250 27,750 57,813 194,250 42,944 (1,792,264) 91,600 4,625 35,000 11,100 $ 3,206,311 (1,076,497) (69,375) $ 2,060,439 $ 9,250,000 (231,250) $ 9,018,750
Estimated Tax Payments (Form 2220): The corporation deposited estimated tax payments as follows: April 15, 2010 June 15, 2010 September 15, 2010 December 15, 2010 Total $ 75,000 151,000 180,000 180,000 $586,000
Taxable income in 2009 was $1,200,000, and the 2009 tax was $408,000. The corporation earned its 2010 taxable income evenly throughout the year. Therefore, it does not use the annualization or seasonal methods. Inventory and Cost of Goods Sold (Schedule A): The corporation uses the periodic inventory method and prices its inventory using the lower of FIFO cost or market. Only beginning inventory, ending inventory, and purchases should be reflected in Schedule A. No other costs or expenses are allocated to cost of goods sold. Note: the corporation is exempt from the uniform capitalization (UNICAP) rules because average gross income for the previous three years was less than $10 million. Line 9 (a) (b), (c) & (d) (e) & (f) Check (ii) Not applicable No
ISBN 1-256-33710-2
Corporations 3-67
Compensation of Officers (Schedule E):

(a) (b) (c) (d) (f)
Mary Travis John Willis Chris Parker Total
345-82-7091 783-97-9105 465-34-2245
100% 100% 100%
50% 25% 25%
$271,250 165,000 165,000 $601,250
Bad Debts: For tax purposes, the corporation uses the direct writeoff method of deducting bad debts. For book purposes, the corporation uses an allowance for doubtful accounts. During 2010, the corporation charged $37,000 to the allowance account, such amount representing actual writeoffs for 2010. Additional Information (Schedule K): 1b 2a b c 3 4a b 5a b Accrual 451140 Retail sales Musical instruments No No Yes; omit Schedule G No No 6-7 8 9 10 11 12 13 No Do not check box Fill in the correct amount 3 Do not check box Not applicable No
Organizational Expenditures: The corporation incurred $9,500 of organizational expenditures on January 2, 2007. For book purposes, the corporation expensed the entire expenditure. For tax purposes, the corporation elected under Sec. 248 to deduct $5,000 in 2007 and amortize the remaining $4,500 amount over 180 months, with a full months amortization taken for January 2007. The corporation reports this amortization in Part VI of Form 4562 and includes it in Other Deductions on Form 1120, Line 26. Capital Gains and Losses: The corporation sold 100 shares of PDQ Corp. common stock on October 7, 2010, for $89,000. The corporation acquired the stock on December 15, 2009, for $48,000. The corporation also sold 75 shares of JSB Corp. common stock on June 17, 2010, for $50,000. The corporation acquired this stock on September 18, 2008, for $56,000. The corporation has a $10,000 capital loss carryover from 2009. Fixed Assets and Depreciation: For book purposes: The corporation uses straight-line depreciation over the useful lives of assets as follows: Store building, 50 years; Equipment, 15 years (old) and ten years (new); and Trucks, five years. The corporation takes a half-years depreciation in the year of acquisition and the year of disposition and assumes no salvage value. The book financial statements in Tables C:3-4 and C:3-5 reflect these calculations. For tax purposes: All assets are MACRS property as follows: Store building, 39-year nonresidential real property; Equipment, seven-year property; and Trucks, five-year property. The corporation acquired the store building for $1.25 million and placed it in service on January 2, 2007. The corporation acquired two pieces of equipment for $288,000 (Equipment 1) and $640,000 (Equipment 2) and placed them in service on January 2, 2007. The corporation acquired the trucks for $210,000 and placed them in service on July 18, 2008. The corporation did not make the expensing election under Sec. 179 on any property acquired before 2010. Accumulated tax depreciation through December 31, 2009, on these properties is as follows:
ISBN 1-256-33710-2
Store building Equipment 1 Equipment 2 Trucks
$ 94,863 162,058 360,128 109,200
On September 1, 2010, the corporation sold for $322,000 Equipment 1 that originally cost $288,000 on January 2, 2007. The corporation had no Sec. 1231 losses from prior years. In a separate transaction on September 2, 2010, the corporation acquired and placed
3-68 Corporations
Chapter 3
in service a piece of equipment costing $2.2 million. Assume these two transactions do not qualify as a like-kind exchange under Reg. Sec. 1.1031(k)-1(a). The new equipment is seven-year property. The corporation made the Sec. 179 expensing election with regard to the new equipment and claimed bonus depreciation. Where applicable, use published IRS depreciation tables to compute 2010 depreciation (reproduced in Appendix C of this text). Other Information: The corporations activities do not qualify for the U.S. production activities deduction. Ignore the AMT and accumulated earnings tax. The corporation received dividends (see Income Statement in Table C:3-5) from taxable, domestic corporations, the stock of which Knoxville Musical Sales, Inc. owns less than 20%. The corporation paid $92,500 in cash dividends to its shareholders during the year and charged the payment directly to retained earnings. The state income tax in Table C:3-5 is the exact amount of such taxes incurred during the year. The corporation is not entitled any credits. Required: Prepare the 2010 corporate tax return for Knoxville Musical Sales, Inc. along with any necessary supporting schedules. Optional: Prepare Schedule M-3 (and Schedule B) as well as Schedule M-1 even though the IRS does not require both Schedule M-1 and Schedule M-3. Note to Instructor: See solution in the Instructors Guide for other optional information to provide to students.
C:3-67
Permtemp Corporation formed in 2009 and, for that year, reported the following book income statement and balance sheet, excluding the federal income tax expense, deferred tax assets, and deferred tax liabilities: Sales Cost of goods sold Gross profit Dividend income Tax-exempt interest income Total income Expenses: Depreciation Bad debts Charitable contributions Interest Meals and entertainment Other Total expenses Net loss before federal income taxes Cash Accounts receivable Allowance for doubtful accounts Inventory Fixed assets Accumulated depreciation Investment in corporate stock Investment in tax-exempt bonds Total assets Accounts payable Long-term debt Common stock Retained earnings Total liabilities and equity $20,000,000 (15,000,000) $ 5,000,000 50,000 15,000 $ 5,065,000 $ 800,000 400,000 100,000 475,000 45,000 3,855,000 (5,675,000) $ (610,000) $ $ 2,000,000 (250,000) $10,000,000 (800,000) 500,000 1,750,000 4,000,000 9,200,000 1,000,000 50,000 $16,500,000 $2,610,000 8,500,000 6,000,000 (610,000) $16,500,000
ISBN 1-256-33710-2
Corporations 3-69
Additional information for 2009: The investment in corporate stock is comprised of less-than-20%-owned corporations. Depreciation for tax purposes is $1.4 million under MACRS. Bad debt expense for tax purposes is $150,000 under the direct writeoff method. Limitations to charitable contribution deductions and meals and entertainment expenses must be tested and applied if necessary. Qualified production activities income is zero. Required for 2009: a. Prepare page 1 of the 2009 Form 1120, computing the corporations NOL. b. Determine the corporations deferred tax asset and deferred tax liability situation, and then complete the income statement and balance sheet to reflect proper GAAP accounting under ASC 740. Use the balance sheet information to prepare Schedule L of the 2009 Form 1120. c. Prepare the 2009 Schedule M-3 for Form 1120. d. Prepare a schedule that reconciles the corporations effective tax rate to the statutory 34% tax rate. Note: For 2009 forms, go to forms and publications, previous years, at the IRS website, www.irs.gov. For 2010, Permtemp reported the following book income statement and balance sheet, excluding the federal income tax expense, deferred tax assets, and deferred tax liabilities: Sales Cost of goods sold Gross profit Dividend income Tax-exempt interest income Total income Expenses: Depreciation Bad debts Charitable contributions Interest Meals and entertainment Other Total expenses Net income before federal income taxes Cash Accounts receivable Allowance for doubtful accounts Inventory Fixed assets Accumulated depreciation Investment in corporate stock Investment in tax-exempt bonds Total assets Accounts payable Long-term debt Common stock Retained earnings
ISBN 1-256-33710-2
$33,000,000 (22,000,000) $11,000,000 55,000 15,000 $11,070,000 $ 800,000 625,000 40,000 455,000 60,000 4,675,000 (6,655,000) $ 4,415,000 $ 2,125,000 $ 3,300,000 (450,000) $10,000,000 (1,600,000) 2,850,000 6,000,000 8,400,000 1,000,000 50,000 $20,425,000 $ 2,120,000 8,500,000 6,000,000 3,805,000 $20,425,000
Additional information for 2010: Depreciation for tax purposes is $2.45 million under MACRS. Bad debt expense for tax purposes is $425,000 under the direct writeoff method. Qualified production activities income is $3 million.
3-70 Corporations
Chapter 3
Required for 2010: a. Prepare page 1 of the 2010 Form 1120, computing the corporations taxable income and tax liability. b. Determine the corporations deferred tax asset and deferred tax liability situation, and then complete the income statement and balance sheet to reflect proper GAAP accounting ASC 740. Use the balance sheet information to prepare Schedule L of the 2010 Form 1120. c. Prepare the 2010 Schedule M-3 for Form 1120. d. Prepare a schedule that reconciles the corporations effective tax rate to the statutory 34% tax rate.
CASE STUDY PROBLEMS

C:3-68
C:3-69
C:3-70
Marquette Corporation, a tax client since its creation three years ago, has requested that you prepare a memorandum explaining its estimated tax requirements for the current year. The corporation is in the fabricated steel business. Its earnings have been growing each year. Marquettes taxable income for the last three tax years has been $500,000, $1.5 million, and $2.5 million, respectively. The Chief Financial Officer expects its taxable income in the current year to be approximately $3 million. Required: Prepare a one-page client memorandum explaining Marquettes estimated tax requirements for the current year, providing the necessary supporting authorities. Susan Smith accepted a new corporate client, Winter Park Corporation. One of Susans tax managers conducted a review of Winter Parks prior year tax returns. The review revealed that an NOL for a prior tax year was incorrectly computed, resulting in an overstatement of NOL carrybacks and carryovers to prior tax years. Apply the Statements on Standards for Tax Services (SSTSs) to the following situtations. The SSTSs are in Appendix E of this text. a. Assume the incorrect NOL calculation does not affect the current years tax liability. What recommendations (if any) should Susan make to the new client? See SSTS No. 6. b. Assume the IRS is currently auditing a prior year. What are Susans responsibilities in this situation? See SSTS No. 6. c. Assume the NOL carryover is being carried to the current year, and Winter Park does not want to file amended tax returns to correct the error. What should Susan do in this situation? See SSTS No. 1. The Chief Executive Officer of a client of your public accounting firm saw the following advertisement in The Wall Street Journal: DONATIONS WANTED The Center for Restoration of Waters A Nonprofit Research and Educational Organization Needs DonationsAutos, Boats, Real Estate, Etc. ALL DONATIONS ARE TAX-DEDUCTIBLE Prepare a memorandum to your client Phil Nickelson explaining how the federal income tax laws regarding donations of cash, automobiles, boats, and real estate apply to corporate taxpayers.

C:3-71
Wicker Corporation made estimated tax payments of $6,000 in 2010. On March 11, 2011, it filed its 2010 tax return showing a $20,000 tax liability, and it paid the $14,000 balance at that time. On April 20, 2011, it discovers an error and files an amended return for 2010 showing a reduced tax liability of $8,000. Prepare a memorandum for your tax manager explaining whether Wicker can base its estimated tax payments for 2011 on the amended $8,000 tax liability for 2010, or must it use the $20,000 tax liability reported on its original return. Your manager has suggested that, at a minimum, you consult the following resources: IRC Sec. 6655(d)(1) Rev. Rul. 86-58, 1986-1 C.B. 365
ISBN 1-256-33710-2
The Corporate Income Tax C:3-72
Corporations 3-71
Alice, Bill, and Charles each received an equal number of shares when they formed King Corporation a number of years ago. King has used the cash method of accounting since its inception. Alice, Bill, and Charles, the shareholder-employees, operate King as an environmental engineering firm with 57 additional employees. King had gross receipts of $4.3 million last year. Gross receipts have grown by about 15% in each of the last three years and were just under $5 million in the current year. The owners expect the 15% growth rate to continue for at least five more years. Outstanding accounts receivable average about $600,000 at the end of each month. Forty-four employees (including Alice, Bill, and Charles) actively engage in providing engineering services on a full-time basis. The remaining 16 employees serve in a clerical and support capacity (secretarial staff, accountants, etc.). Bill has read about special restrictions on the use of the cash method of accounting and requests information from you about the impact these rules might have on Kings continued use of that method. Prepare a memorandum for your tax manager addressing the following issues: (1) If the corporation changes to the accrual method of accounting, what adjustments must it make? (2) Would an S election relieve King from having to make a change? (3) If the S election relieves King from having to make a change, what factors should enter into the decision about whether King should make an S election? Your manager has suggested that, at a minimum, you should consult the following resources: IRC Secs. 446 and 448 Temp. Reg. Secs. 1.448-1T and -2T H. Rept. No. 99-841, 99th Cong., 2d Sess., pp. 285289 (1986) James Bowen owns 100% of Bowen Corporation stock. Bowen is a calendar year, accrual method taxpayer. During the current year, Bowen made three charitable contributions:
Donee Property Donated FMV of Property
C:3-73
State University Red Cross Girl Scouts
Bates Corporation stock Cash Pledge to pay cash
$110,000 5,000 25,000
Bowen purchased the Bates stock three years ago for $30,000. Bowen holds a 28% interest, which it accounts for under GAAP using the equity method of accounting. The current carrying value for the Bates stock for book purposes is $47,300. Bowen will pay the pledge to the Girl Scouts by check on March 3 of next year. Bowens taxable income for the current year before the charitable contributions deduction, dividends-received deduction, NOL deduction, and U.S. production activities deduction is $600,000. Your tax manager has asked you to prepare a memorandum explaining how these transactions are to be treated for tax purposes and for accounting purposes. Your manager has suggested that, at a minimum, you should consult the following resources: IRC Sec. 170 Accounting Standards Codification (ASC) 720
C:3-74
Production Corporation owns 70% of Manufacturing Corporations common stock and Rita Howard owns the remaining 30%. Each corporation operates and sells its product within the United States, and the corporations engaged in no intercompany transactions. Productions Chief Financial Officer (CFO) presents you with the following information pertaining to current year operations:
Production Corporation Manufacturing Corporation
Gross profit on sales Minus: Operating expenses Qualified production activities income Plus: Dividends received from 20%-owned corporations Minus: Dividends-received deduction NOL carryover deduction Taxable income before the U.S. production activities deduction
$500,000 (200,000) $300,000 20,000 (16,000) -0$304,000
$225,000 (100,000) $125,000 -0-0(15,000) $110,000
ISBN 1-256-33710-2
3-72 Corporations
Chapter 3
Operating expenses include W-2 wages allocable to U.S. production activities of $75,000 and $35,000 for Production and Manufacturing, respectively. Given this information, the CFO asks you to determine each corporations qualified production activities deduction. The applicable deduction percentage is 9%. At a minimum, you should consult the following resources: IRC Sec. 199 Reg. Sec. 1.199-7

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1

1-2 Corporations Chapter 1

Describe the steps in the tax research process

1-4 Corporations Chapter 1

Determine the facts.

Identify the issues (questions).

Locate the applicable authorities.

Analyze the facts in terms of the applicable authorities.

Communicate conclusions and recommendations to the client.

STEPS IN THE TAX RESEARCH PROCESS

Tax Research Corporations 1-5

Sec. 152(e)(1)(A) and Sec. 152(d)(1)(C).

1-6 Corporations Chapter 1

Rev. Rul. 93-86, 1993-2 C.B. 71.

Tax Research Corporations 1-7

1-8 Corporations Chapter 1

S. Rept. No. 105-174, 105th Cong., 1st Sess. (unpaginated) (1998).

Tax Research Corporations 1-9

ORGANIZATIONAL SCHEME OF THE INTERNAL REVENUE CODE

1-10 Corporations Chapter 1

Tax Research Corporations 1-11

1-12 Corporations Chapter 1

Rev. Proc. 97-19, 1997-1 C.B. 644.

Chapter C:15 further discusses letter rulings.

Tax Research Corporations 1-13

Technical advice memoranda are discussed further in Chapter C:15.

1-14 Corporations Chapter 1

Tax Research Corporations 1-15 TABLE C:1-1

Federal Judicial Circuits

U.S. Supreme Court a

Court of Appeals for Federal Circuit

Courts of Original Jurisdiction (Trial Courts):

U.S.Tax Court Do Not Pay Deficiency First

U.S. District Court for taxpayers district

U.S. Court of Federal Claims

Pay Deficiency First

Cases are heard only if the Supreme Court grants certiorari.

OVERVIEW OF COURT SYSTEMTAX MATTERS

1-16 Corporations Chapter 1

Summary of Court SystemTax Matters

Personal Jurisdiction Local

Subject Matter Jurisdiction General

Determines Questions of Fact Yes

Trial by Jury Yes

U.S. Court of Federal Claims (1)

Claims against U.S. Government General

U.S. Courts of Appeals (13) U.S. Supreme Court (1)

Tax Research Corporations 1-17

1-18 Corporations Chapter 1

Edith G. McKinney, 1981 PH T.C. Memo 81,181, 41 TCM 1272.

Tax Research Corporations 1-19

1-20 Corporations Chapter 1

Tax Research Corporations 1-21

1-22 Corporations Chapter 1 TABLE C:1-3

Summary of Tax-related Primary SourcesStatutory and Administrative

Internal Revenue Bulletin

Government Printing Office

Government Printing Office

Summary of Tax-related Primary and Secondary SourcesJudicial

1-24 Corporations Chapter 1

Tax Research Corporations 1-25

Summary of Key Features of Tax Services